C - [2024] WASAT 50 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   C [2024] WASAT 50
MEMBER:   PRESIDENT PRITCHARD
MS R BUNNEY, MEMBER
DR J CAUNT, SESSIONAL MEMBER

HEARD:   14 MAY 2024
DELIVERED          :   14 MAY 2024
PUBLISHED           :   17 MAY 2024
FILE NO/S:   GAA 2253 of 2024

C
Applicant

Catchwords:

Guardianship and administration – Application for Tribunal consent for the performance of an abortion – Patient with schizophrenia – s 110ZNB – Patient under current guardianship and administration orders – Whether patient is incapable of making reasonable judgments in respect of whether or not the abortion should be performed – Presumption of capacity not rebutted – Application dismissed

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 4(3), s 4(7), s 110ZLA, s 110ZLA(3), s 110ZLB, s 110ZLC, s 110ZNB, s 110ZNC, s 110ZNC(1), s 110ZNC(5), s 110ZND, s 110ZND(1), s 110ZND(2), s 110ZND(3)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant

In Person

Solicitors:

Applicant

N/A

Cases referred to in decision(s):

FY [2019] WASAT 118
GKB [2020] NSWCATGD 99
Guthrie v Spence [2009] NSWCA 369
Hunter and New England Area Health Service v A [2009] NSWSC 761
NGN [2020] NSWCATGD 100
Re T (Adult: Refusal of Treatment) [1993] Fam 95

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons were delivered ex tempore and have been edited from the transcript to correct grammatical errors or infelicity of expression).

Introduction

Dr C[1] has applied, pursuant to s 110ZNB of the Guardianship and Administration Act 1990 (WA) (GA Act), for an order to be made by the Tribunal under s 110ZND of the GA Act to give its consent to the performance of an abortion on Ms AB (Application).
[1] The names of all persons involved in these proceedings have been anonymised.
For the reasons which follow, the key issue on the Application is whether Ms AB is able to make reasonable judgments in respect of whether or not the abortion should be performed on her. We are satisfied that she is able to do so. That being the case, the Tribunal's consent under s 110ZND of the GA Act is not required and the Application should be dismissed.

Factual background

Ms AB is a 34‑year‑old woman. She is currently pregnant and is approaching the 11^th week of her pregnancy.
Ms AB has a longstanding history of schizophrenia and, since 2015, has had multiple hospital admissions when her condition has deteriorated, and her symptoms have increased. In addition, Ms AB has a comorbid diagnosis of polysubstance use disorder and in recent years, she has used alcohol and methamphetamine.
Since January 2024, Ms AB has been a patient at a hospital (Hospital) under an extended care program, receiving treatment for her schizophrenia. The evidence today revealed that following treatment in hospital, Ms AB is now much improved, so much so that she is no longer an involuntary patient under the Mental Health Act2014 (WA) but is remaining…

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.

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Details

AGLC: C [2024] WASAT 50
Case: [2024] WASAT 50
Decision Date: 17 MAY 2024

CaseChat Overview and Summary

In the matter of C, the Queensland Civil and Administrative Tribunal (QCAT) was presented with an application for consent to perform an abortion on a patient, Ms AB, who was under guardianship and administration orders. Ms AB had been diagnosed with schizophrenia, which manifested in delusions of a persecutory nature and hallucinations, and had a history of substance abuse. The application was made by the treating medical team seeking the Tribunal's consent under s 110ZND of the Guardianship and Administration Act 2000 (GA Act). The central legal issues the Tribunal needed to determine were whether Ms AB was incapable of making reasonable judgments regarding the abortion and whether it was in her best interests to proceed with the abortion.

The Tribunal examined the evidence provided by Dr J and Dr W, who testified that Ms AB's mental state had improved significantly due to treatment, and that she no longer experienced hallucinations or delusions. Both doctors concluded that Ms AB had the capacity to comprehend, believe, understand, retain, and weigh the information about the abortion. They also confirmed that Ms AB's decision to have an abortion was not influenced by her mental illness or impulsive decision-making. Furthermore, there was no evidence of external pressure on Ms AB to make this decision. Considering these factors, the Tribunal found that the presumption of capacity had not been rebutted, as Ms AB demonstrated an ability to make reasonable judgments regarding the abortion.

In light of the evidence and the statutory requirements, the Tribunal dismissed the application for consent to perform the abortion. The Tribunal found that Ms AB was capable of making reasonable judgments about whether to proceed with the abortion, and her decision aligned with her best interests, taking into account her wishes and the foreseeable likelihood of regaining decision-making capacity. Consequently, the Tribunal ruled that there was no need for its intervention in this matter.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The evidence as to Ms AB's capacity to make a reasonable judgment as to whether to have an abortion We received evidence from Dr J and from Dr W as to Ms AB's present capacity for decision‑making about personal matters. They told us that Ms AB has a diagnosis of schizophrenia which is a chronic illness. In relation to Ms AB, it manifests in delusions of a persecutory nature and hallucinations. These symptoms have been complicated by her substance abuse of alcohol and methamphetamine. Dr J explained that when Ms AB came into the Hospital, she was very unwell. At that stage she was in the care of another treatment team. As a result of the care she has received, Ms AB's mental state has improved markedly. She is no longer experiencing hallucinations or delusions and that has had an improvement in her cognitive abilities. We asked Dr J and Dr W a number of questions in relation to Ms AB's ability to weigh up the pros and cons of having an abortion. It was their evidence that Ms AB had the ability to comprehend the information that she had received in relation to the decision about whether to have an abortion, that she was likely to believe that information, and understand it, that she had the ability to retain that information, and that she had the ability to weigh up that information in order to make a reasonable judgment. We also asked Dr J and Dr W whether Ms AB's mental illness had influenced her views in relation to whether to have an abortion. The information before the Tribunal included evidence that was available to the Tribunal when the application for a guardianship order for Ms AB was made earlier in 2024. That information included a psychological report that indicated that Ms AB's general cognitive ability was within the borderline range of intellectual function and that her decision‑making ability suggested deficits in abstract reasoning and in impulsiveness. We were particularly concerned as to whether Ms AB's expressed wish to have an abortion was a result of impulsive decision‑making. Dr J and Dr W both expressed the opinion that Ms AB's wish to have an abortion was not influenced by her mental illness and that they did not attribute it to her impulsive decision-making tendencies. Each of them explained to us that Ms AB has consistently expressed the view that she wishes to have an abortion. Dr W explained that he sees Ms AB every day and that her decision has freely and consistently been expressed and that it has been based on consistent reasons. In particular, it was based on her desire to avoid having a pregnancy when she did not know who the baby's father was, and did not wish to have a pregnancy without the support that she might require. We also heard from Dr J and Dr W in relation to whether there had been any perception on their part of pressure on Ms AB to reach the decision to have an abortion. Their evidence was that they saw no sign of any such pressure. Dr W indicated that he considered that Ms AB was aware, in making her decision, of the need to take into account her social situation and the supports that would be available to her in continuing with the pregnancy.

Decision

Reasons for decision

DR J

An application to the Tribunal for a decision for the purposes of s 110ZLA(3) of the GA Act (abortion consent decision) may only be made by the person on whom the abortion is proposed to be performed, their enduring guardian or guardians, a relative (as defined in the GA Act), the Public Advocate, or a person who, in the opinion of the Tribunal, has a proper interest in the matter. Other than in circumstances of urgency,[3] the Tribunal must give reasonable notice of an application for an abortion consent decision to the persons specified in s 110ZNC(1). [3] GA Act, s 110ZNC(5). The Tribunal must have a hearing in relation to an application for an abortion consent decision.[4] [4] GA Act, s 110ZNC and s 110ZND. The Tribunal may only give consent to the performance of an abortion on a person if a number of criteria are met.[5] The Tribunal must be satisfied that:(a)the person has reached 18 years of age;(b)the person is unable to make reasonable judgments in respect of whether or not the abortion should be performed on them;(c)the person has not made an advance health directive containing a treatment decision that is inconsistent with the performance of the abortion on the person; and(d)the performance of the abortion on the person is in the best interests of that person. [5] GA Act, s 110ZND(1). In deciding whether the performance of an abortion on the person is in their best interests, the Tribunal must take into account (amongst any other considerations it considers relevant):[6] (a)Whether the person is likely, within the foreseeable future, to regain the ability to make reasonable judgments in respect of whether or not the abortion should be performed on them; and (b)Any wishes of the person so far as they can be obtained. [6] GA Act, s 110ZND(2). The Tribunal may give its consent to the performance of an abortion on a person subject to compliance with any condition that the Tribunal considers appropriate.[7] [7] GA Act, s 110ZND(3). A decision of the Tribunal in relation to the performance of an abortion on a person has effect as if it were a treatment decision made by the person in respect of the performance of the abortion on them and the person were of full legal capacity.[8] [8] GA Act, s 110ZLC. The jurisdiction the Tribunal exercises under s 110ZND is its original jurisdiction. In exercising that jurisdiction, the Tribunal is required to have regard to the principles set out in s 4 of the GA Act. In particular, we are mindful that the primary concern of the Tribunal is the best interests of the person in respect of whom the application is made.[9] In addition, every person is presumed to be capable of, amongst other things, making reasonable judgments in respect of matters relating to their person until the contrary is proved to the satisfaction of the Tribunal.[10] That important presumption applies in respect of every application under the GA Act, including the present application. In considering any matter relating to a person in respect of whom an application is made, the Tribunal is also required, as far as possible, to seek to ascertain the views and wishes of that person.[11] [9] GA Act, s 4(2).[10] GA Act, s 4(3).[11] GA Act, s 4(7).

Ratio Decidendi

Legal Principle Established

Established by: DR J

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