Alice (a pseudonym) - [2024] NSWCATGD 29

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Alice (a pseudonym) [2024] NSWCATGD 29
Hearing dates: 10 December 2024
Date of orders: 10 December 2024
Decision date: 10 December 2024
Jurisdiction: Guardianship Division
Before: R H Booby, Principal Member
Dr B McPhee, Senior Member (Professional)
D R Sword, General Member (Community)
Decision:
Special Medical Treatment
The Tribunal consents to the following special medical treatment being provided to Alice:
hysterectomy by laparotomy under a general anaesthetic and any necessary treatment that would normally be provided in association with or directly consequent upon the above treatment.
This consent is effective for a period of four month(s) from the date of this order.
Guardianship
1. A guardianship order is made for Alice.
2. Rose, of [Address removed for publication.], is appointed as the guardian.
3. Charlie, of [Address removed for publication.], is appointed as the alternative guardian.
4. This is a continuing guardianship order for a period of 12 months from 10 December 2024.
5. This order will not be reviewed at the end of the above period.
6. This is a limited guardianship order giving the guardian(s) custody of Alice to the extent necessary to carry out the functions below.
FUNCTIONS: Rose
7. Rose has the following functions:
a) Health care
To decide what health care Alice may receive.
b) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where Alice is not capable of giving a valid consent.
CONDITION:
8. The condition of this order is:
a) Standard Condition
In exercising this role, the guardian shall take all reasonable steps to bring Alice to an understanding of the issues and to obtain and consider her views before making significant decisions.

Catchwords:
CONSENT TO MEDICAL TREATMENT – application for hysterectomy with retention of ovaries – 33-year-old woman with a large uterine fibroid – potential malignancy – proposed treatment is special medical treatment – treatment would render person infertile –whether person is able to consent to treatment – person has a general understanding of procedure but lacks depth – person incapable of giving consent – condition poses serious risk to person’s health – alternative strategies available but less suitable – consent to treatment provided – effective for a period of four months.
GUARDIANSHIP – application for a guardianship order for person – whether person is “in need of a guardian – satisfied that due to lifelong intellectual disability person is “in need of a guardian” – person also unable to obtain medical treatment without guardianship order - who should be the guardian – person’s mother meets the requirements to be appointed – person’s mother appointed for a period of 12 months.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 33(1)-(2), 33A(4), 36(1)(b), 42, 44, 45(2); Pt 5

Cases Cited:
IF v IG [2004] NSWADTAP 3
P v D1 [2011] NSWSC 257
W v G [2003] NSWSC 1170
ZKF v ZKG [2019] NSWCATAP 64

Texts Cited:
None cited.

Category: Principal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alice (a pseudonym)

Details

AGLC: Alice (a pseudonym) [2024] NSWCATGD 29
Case: [2024] NSWCATGD 29
Decision Date: 10 December 2024

CaseChat Overview and Summary

The case involved Alice, a pseudonymous 33-year-old woman with a lifelong intellectual disability and a large uterine fibroid, which posed a potential risk of malignancy. Alice's condition required a hysterectomy with retention of her ovaries, classified as special medical treatment under the relevant legislation. However, due to her intellectual disability, Alice was deemed incapable of providing informed consent for this procedure. The court was tasked with determining whether Alice could consent to the proposed medical treatment and, if not, who should be appointed as her guardian to facilitate her medical care.

The legal issues before the court were twofold: first, whether Alice was capable of consenting to the special medical treatment, and second, whether Alice was in need of a guardian, and if so, who should be appointed to this role. The court found that Alice had a general understanding of the procedure but lacked the depth of comprehension necessary to give informed consent. Given the serious risk to her health and the availability of alternative strategies that were less suitable, the court concluded that Alice was incapable of giving consent to the treatment. Furthermore, the court determined that Alice was in need of a guardian due to her intellectual disability and her inability to obtain medical treatment without such an order. The court appointed Alice's mother as her guardian for a period of 12 months, with specific functions related to health care and medical consent.

The court granted consent for Alice to undergo a hysterectomy by laparotomy under general anaesthesia, effective for four months. Additionally, the court issued a guardianship order, appointing Alice's mother as her guardian, with specified functions including health care and medical consent. The guardianship order is a limited, continuing order for a period of 12 months, with a condition that the guardian must take reasonable steps to ensure Alice understands the issues and considers her views before making significant decisions. The order is not subject to review at the end of the specified period.

Orders

Orders of the court

Special Medical Treatment

The Tribunal consents to the following special medical treatment being provided to Alice:

hysterectomy by laparotomy under a general anaesthetic and any necessary treatment that would normally be provided in association with or directly consequent upon the above treatment.

This consent is effective for a period of four month(s) from the date of this order.

Guardianship

1. A guardianship order is made for Alice.

2. Rose, of [Address removed for publication.], is appointed as the guardian.

3. Charlie, of [Address removed for publication.], is appointed as the alternative guardian.

4. This is a continuing guardianship order for a period of 12 months from 10 December 2024.

5. This order will not be reviewed at the end of the above period.

6. This is a limited guardianship order giving the guardian(s) custody of Alice to the extent necessary to carry out the functions below.

FUNCTIONS: Rose

7. Rose has the following functions:

a) Health care

To decide what health care Alice may receive.

b) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where Alice is not capable of giving a valid consent.

CONDITION:

8. The condition of this order is:

a) Standard Condition

In exercising this role, the guardian shall take all reasonable steps to bring Alice to an understanding of the issues and to obtain and consider her views before making significant decisions.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Alice (a pseudonym) [2024] NSWCATGD 29
Hearing dates:	10 December 2024
Date of orders:	10 December 2024
Decision date:	10 December 2024
Jurisdiction:	Guardianship Division
Before:	R H Booby, Principal Member Dr B McPhee, Senior Member (Professional) D R Sword, General Member (Community)
Decision:	Special Medical Treatment The Tribunal consents to the following special medical treatment being provided to Alice: hysterectomy by laparotomy under a general anaesthetic and any necessary treatment that would normally be provided in association with or directly consequent upon the above treatment. This consent is effective for a period of four month(s) from the date of this order. Guardianship 1. A guardianship order is made for Alice. 2. Rose, of [Address removed for publication.], is appointed as the guardian. 3. Charlie, of [Address removed for publication.], is appointed as the alternative guardian. 4. This is a continuing guardianship order for a period of 12 months from 10 December 2024. 5. This order will not be reviewed at the end of the above period. 6. This is a limited guardianship order giving the guardian(s) custody of Alice to the extent necessary to carry out the functions below. FUNCTIONS: Rose 7. Rose has the following functions: a) Health care To decide what health care Alice may receive. b) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where Alice is not capable of giving a valid consent. CONDITION: 8. The condition of this order is: a) Standard Condition In exercising this role, the guardian shall take all reasonable steps to bring Alice to an understanding of the issues and to obtain and consider her views before making significant decisions.
Catchwords:	CONSENT TO MEDICAL TREATMENT – application for hysterectomy with retention of ovaries – 33-year-old woman with a large uterine fibroid – potential malignancy – proposed treatment is special medical treatment – treatment would render person infertile –whether person is able to consent to treatment – person has a general understanding of procedure but lacks depth – person incapable of giving consent – condition poses serious risk to person’s health – alternative strategies available but less suitable – consent to treatment provided – effective for a period of four months. GUARDIANSHIP – application for a guardianship order for person – whether person is “in need of a guardian – satisfied that due to lifelong intellectual disability person is “in need of a guardian” – person also unable to obtain medical treatment without guardianship order - who should be the guardian – person’s mother meets the requirements to be appointed – person’s mother appointed for a period of 12 months.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 33(1)-(2), 33A(4), 36(1)(b), 42, 44, 45(2); Pt 5
Cases Cited:	IF v IG [2004] NSWADTAP 3 P v D1 [2011] NSWSC 257 W v G [2003] NSWSC 1170 ZKF v ZKG [2019] NSWCATAP 64
Texts Cited:	None cited.
Category:	Principal…