DM

[2023] QCAT 402

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

DM [2023] QCAT 402

PARTIES:

In applications about matters concerning DM

APPLICATION NO/S:

GAA10306-23; GAA10307-23; GAA10308-23

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

1 September 2023 (delivered ex tempore)

HEARING DATE:

1 September 2023

HEARD AT:

Brisbane

DECISION OF:

Senior Member Browne, Presiding
Member Dr Pinkerton

ORDERS:

1. The withdrawal of the application for an appointment of a guardian by Andrew Semark has been approved by the Tribunal pursuant to s 46 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

2. The withdrawal of the application for an interim order for the appointment of a guardian by Andrew Semark has been approved by the Tribunal pursuant to s 46 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

3.     The Tribunal consents to DM to undergo sterilisation being endometrial ablation or hysterectomy.

4.     This order remains current for a period of three (3) months.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – OTHER – where application for consent to special health care - sterilisation – where Tribunal appoints the Public Guardian as representative to represent to the views, wishes and interests of the adult – where adult has a desire to have more children – where sterilisation is medically necessary to preserve the adult’s life - whether the adult has capacity to make a decision about a special health care matter – whether sterilisation is a procedure of last resort after other options have failed

Guardianship and Administration Act 2000 (Qld), s 70, s 125

Human Rights Act 2019 (Qld), s, 13, s 15, s 17, s 20, s 21, s 28, s 30, s 31, s 48

APPEARANCES & REPRESENTATION:

Adult:

Tony Wherritt (Public Guardian)

Applicants:

Dr James McCullough

Dr Graeme Walker

Dr Andrew Semark

REASONS FOR DECISION

1. SENIOR MEMBER BROWNE:   The Tribunal panel is today constituted by Senior Member Browne and Dr Pinkerton, and the Tribunal has received the following applications filed by Dr James McCullough, treating doctor on the 29^th of August 2023, an application for an interim order for the appointment of a guardian, application for the appointment of a guardian, an application for consent to special health care sterilisation. 

2. DM is unable to tell us in her own words today her views, wishes and preferences about the applications received because she is intubated and heavily sedated.  DM has been an inpatient of the intensive care unit at the Gold Coast University Hospital since her admission on the 17^th of July 2023.  Material filed in support of the applications indicate, and we accept, that DM is receiving extracorporeal membrane oxygenation for her respiratory failure due to an infection.  This is a top-tier life support device.  No further support can be offered.

3. Dr Andrew Semark speaking as the applicant in the hearing today sought leave to withdraw the applications for the appointment of a guardian and for an interim order for the appointment of a guardian on the basis that the statutory health attorney can make decisions about DM’s healthcare matters.  This is the least restrictive decision making support for DM and the Tribunal has given leave for the applications to be withdrawn. 

4. Dr Semark now applies of urgent approval or consent for endometrial ablation and, if all other measures fail, hysterectomy.  Endometrial ablation would prevent a future pregnancy.  A hysterectomy will also render DM unable to carry another child.  The procedures, endometrial ablation or hysterectomy, are for the purposes of the Guardianship and Administration Act 2000 (Qld) sterilisation, because it is healthcare that is intended or reasonably likely to make DM, or to ensure DM is, permanently infertile.

5. The proposed procedure is special healthcare, namely sterilisation, and therefore requires the Tribunal’s approval because DM is unable to give her consent.  The procedures are medically necessary because if DM has further severe vaginal blood loss, this would be life threatening.  After the applications were received by the Tribunal on the 29^th of August 2023, the Public Guardian was appointed under section 125 of the Guardianship and Administration Act 2000 (Qld) to represent DM’s views, wishes and interests.

6. The applications were listed for an urgent oral hearing today because the applications make clear that DM has severe vaginal bleeding that is refractory to medical management, with the remaining option being surgical management.  The medical management of the vaginal bleeding poses high risk to DM’s treatment of her other medical conditions.  Daily blood transfusions are required which lead to further compromise of lung function.

7. Further, the proposed procedure, endometrial ablation or hysterectomy, is special healthcare necessary to preserve DM’s life and improve her outcome.  Put simply, there is a risk to DM’s life as a result of the blood loss and it is said to be necessary for treating doctors to manage the blood loss by surgical procedure.  Because of the urgency and potential risk to DM’s life, we are satisfied that it is necessary to abridge time for notice of the hearing so the application can proceed today.  There is evidence before us of urgent or special circumstances, such as DM’s ongoing blood loss despite treatments in clinical setting of life-sustaining dialysis and extracorporeal membrane oxygenation circuits. 

8. Turning to the issue of capacity as defined under Schedule 4 of the Guardianship and Administration Act 2000 (Qld) and reflected in the general principles, DM is presumed to have capacity to make her own decisions about her healthcare and special healthcare matters, including whether to give her consent to the proposed sterilisation. The procedure, sterilisation, if approved, involves post-surgery monitoring and recovery. It will also render DM infertile. We accept the uncontradicted medical evidence contained in the report of Dr McCullough dated the 28^th of August 2023.

9. We find that DM is a 36-year old Aboriginal woman who is a patient in the intensive care unit of the Gold Coast University Hospital.  She is unable to communicate her views and wishes because she is intubated and heavily sedated.  DM was supported in the hearing today by her husband and her mother, and the Tribunal has also taken into account the views of the Public Guardian appointed as a representative. 

10. DM has severe respiratory failure secondary to influenza B and bacterial pneumonia requiring sedation, intubation and extracorporeal membrane oxygenation to maintain her oxygen levels.  DM has vaginal bleeding requiring multiple blood transfusions and renal failure requiring dialysis.  We find the presumption of capacity to give consent to the special healthcare procedure is rebutted.  We accept the unchallenged evidence of Dr Walker given in the hearing today that the procedures, that are sterilisation for the purposes of the Guardianship and Administration Act 2000 (Qld), are medically necessary because DM is experiencing severe blood loss. On balance we are satisfied that if consent for the procedure is not given there may be severe blood loss that will result in cardiac arrest.

11. In considering whether to give our consent we have taken into account section 70 of the Guardianship and Administration Act 2000 (Qld) and we are therefore exercising the discretion to give consent to the sterilisation. We have also considered the Australian Guardianship and Administration Council Protocol for Special Medical Procedures (Sterilisation) that identify a number of matters relevant to the application for consent to special healthcare, including, and amongst other things, that the sterilisation is a last resort after other options have failed to produce outcomes satisfactory to the person.

12. There are also a number of proposed directions contained within the protocol relating to material or evidence relevant to an application, including the opinions of doctors as to the person’s capacity, and reports by medical and other experts, including the person’s treating doctor and specialists in the area of medicine who are not involved in the person’s care and who have no interest in the outcome of the hearing.  The material evidence is intended to address a number or relevant factors, such as the reproductive health of the person, and amongst other things, the likely long-term social and psychological effects of the procedure on the person.

13. In this matter, we have heard from DM’s husband and mother who have emphasised DM’s desire to have other children.  We have also considered the views of the Public Advocate.  The medical evidence is compelling and relevant to the application today as is DM’s inherent dignity and worth, and equal and inalienable rights to be considered and taken into account. 

14. DM does have a desire to have more children.  That is something we have been told.  However, we are satisfied based on the evidence given in the hearing today and contained in the applications, that consent should be given because of the urgent or special circumstances.  The sterilisation is considered by DM’s medical treatment team to be a procedure of last resort, and only if necessary to preserve her life. 

15. So the orders will be firstly that the withdrawal of the application for the appointment of a guardian by Andrew Semark has been approved by the Tribunal pursuant to section 46 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), and the withdrawal of the application for an interim order by Andrew Semark has been approved by the Tribunal pursuant to section 46 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The Tribunal also orders consent for DM to undergo sterilisation, being endometrial ablation or hysterectomy, and this order remains current for a period of three months.

16. I have also considered the relevant human rights set out in the Human Rights Act 2019 (Qld) as required under s 48. The Tribunal must interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights. DM’s rights to recognition as a person before the law entitled to equal protection without discrimination, freedom of movement, privacy, and protection from torture, cruel, inhuman or degrading treatment, and also a right to a fair hearing, amongst other rights, are all engaged and limited by the making of these orders. Taking into account my findings about the criteria set out in the Guardianship and Administration Act 2000 (Qld), I am satisfied the limits imposed by the orders made are reasonable and justified in accordance with section 13 of the Human Rights Act 2019 (Qld). The orders made are the least restrictive based on the information before us.