DXI

[2016] NSWCATGD 4

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DXI [2016] NSWCATGD 4
Hearing dates:	11 May 2016
Date of orders:	12 May 2016
Decision date:	24 June 2016
Jurisdiction:	Guardianship Division
Before:	B Tearle, Senior Member (Legal) B McPhee, Senior Member (Professional) M Williams, General Member (Community)
Decision:	Application for consent to special medical treatment dismissed.  Tribunal not satisfied that Miss DXI was incapable of understanding the general nature and the effect of the proposed treatment.
Catchwords:	SPECIAL MEDICAL TREATMENT – application for consent to special medical treatment – termination of pregnancy – whether the person is incapable of giving consent to the proposed special treatment – section 34(1)(b) of the Guardianship Act 1987 (NSW) – presumption of capacity – evidence of incapacity required – Tribunal’s jurisdiction not engaged – application dismissed
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), Schedule 6, clause 5 Guardianship Act 1987 (NSW), Part 5; ss 4, 32, 33(1), 33(2), 33(2)(a), 34(1), 34(1)(b), 37, 44, 45(1) and (2)
Cases Cited:	C v Guardianship and Administration Board [2002] TASSC 29 Hunter and New England Area Health Service v A [2009] NSWSC 761 Re JS [2014] NSWSC 302
Category:	Principal judgment
Parties:	Miss DXI (subject person) Dr SDP (applicant) Ms NBI (party joined by the Tribunal)
Representation:	Separate Representative: S Sutherland
File Number(s):	62532
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

APPLICATION FOR CONSENT TO SPECIAL MEDICAL TREATMENT

Application details

1. This was an application by Dr SDP, an Obstetrician at a public hospital, for consent to special medical treatment for Miss DXI, under section 44 of the Guardianship Act 1987 (NSW). The proposed special medical treatment was the termination of Miss DXI's pregnancy.

What the Tribunal decided

2. The Tribunal:

• joined Miss DXI's mother, Ms NBI, as a party to these proceedings; and

• dismissed the application lodged by Dr SDP in which he requested the Tribunal to consent to special medical treatment, being the termination of Miss DXI’s pregnancy.

3. The Tribunal was not satisfied that Miss DXI was incapable of understanding the general nature and the effect of the proposed treatment. Accordingly, the Tribunal could not be satisfied that Miss DXI is a person to whom Part 5 of the Guardianship Act applied, and hence the Tribunal lacked the jurisdiction to make the order sought in these proceedings.

BACKGROUND

Reasons for the proposed treatment

4. Miss DXI, an Aboriginal woman who is now 19 years old, lives with her mother and carer, Ms NBI, in regional NSW. Miss DXI has a three-year-old son who lives at home with her. At the time of the hearing on 11 May 2016, Miss DXI was 21 weeks pregnant, and was an inpatient of the Intensive Care Unit of the public hospital.

5. On 10 May 2016, Dr SDP, an Obstetrician at the public hospital, lodged with the Tribunal a completed Health Professional Report Form for Special Treatment Applications. After the Tribunal Registry made contact with Dr SDP, he later that same day lodged an application seeking consent to the termination of Miss DXI's pregnancy. Dr SDP stated in his application that Miss DXI was then 21 weeks pregnant, with severe pre-eclampsia, with a background of renal failure. Miss DXI also experienced progressive hypertension. Dr SDP stated that no further treatment could be offered to Miss DXI, who was already receiving maximal antihypertensive treatment and haemodialysis. Dr SDP warned that Miss DXI was at risk of eclamptic seizures, cerebral haemorrhage or a stroke if her pregnancy was not terminated. Dr SDP added that there was a remote possibility of death.

6. In his application, Dr SDP stated that Miss DXI's intellectual disability prevents her clinicians from being able to assess whether she fully understands the implications of her medical illness, and why her pregnancy should not continue. According to Dr SDP, Miss DXI would not consent to the termination of her pregnancy unless this was immediately life-threatening. Dr SDP acknowledged that it was unclear whether Miss DXI had a clear understanding of the implications of allowing her pregnancy to continue.

7. In the Health Professional Report Form that he had completed on 10 May 2016, Dr SDP confirmed that Miss DXI requires haemodialysis six times each week, as an inpatient. Dr SDP stated that the foetus appears to be growing normally. However, for the foetus to survive, the pregnancy would need to reach a minimum of 24 weeks gestation, and be appropriately grown. According to Dr SDP, this makes continuing treatment essentially "futile, with a risk to [Miss DXI] of serious permanent injury".

8. In support of his application, Dr SDP provided the Tribunal with a report prepared on 9 May 2016 by Dr Z, Consultation Liaison Psychiatrist at the same public hospital.

What did the Tribunal have to decide?

9. Before the Tribunal may give consent to the special treatment proposed for Miss DXI, it must be satisfied that:

• Miss DXI is incapable of giving consent to the proposed special treatment [Guardianship Act, section 34(1)(b)]; and

• the proposed special treatment is the most appropriate form of treatment for promoting and maintaining Miss DXI’s health and well-being; and

• the treatment is necessary to save Miss DXI’s life; or

• the treatment is necessary to prevent serious damage to Miss DXI’s health [section 45(1) and (2)].

Parties

10. Both Miss DXI and Dr SDP were parties to these proceedings: Civil and Administrative Tribunal Rules 2014 (NSW), Rule 27.

11. The Tribunal was satisfied that it was clearly in Miss DXI's interests for her mother and carer, Ms NBI, to be joined as a party to the current application. The Tribunal, of its own motion, ordered accordingly.

Separate representation

12. In an interlocutory hearing conducted on 11 May 2016, the Tribunal ordered that Miss DXI be separately represented in these proceedings. Mr Stuart Sutherland, Solicitor, participated in the substantive hearing as Miss DXI's separate representative.

Conduct of the hearing on 11 May 2016

13. The Tribunal Registry had arranged for the hearing to be conducted on an urgent basis. The Tribunal itself was satisfied, after taking account of:

• the application prepared by Dr SDP on 10 May 2016;

• the Health Professional Report Form, completed by Dr SDP on 10 May 2016;

• the report prepared on 9 May 2016 by Dr Z, Consultation Liaison Psychiatrist at a public hospital;

• the available evidence concerning Miss DXI’s condition, and the concerns Dr SDP had outlined in his report, and in his application; and

• the nature of the treatment proposed by Dr SDP,

• that it was in Miss DXI's best interests for the Tribunal to proceed to hear the application urgently, even though Miss DXI and her mother, Ms NBI, could only have received relatively short notice of the hearing.

14. In reaching that decision, the Tribunal also took account of a brief report and a file note dated 11 May 2016, prepared for this hearing by the Tribunal Registry. The report stated that Dr Y, the Director of Medical Services of the same public hospital, had spoken with the Registry before the hearing. Dr Y had informed the Registry that Miss DXI's ability to participate in the hearing was minimal. Dr Y undertook:

• to arrange for Miss DXI and her mother, Ms NBI, to be provided with copies of the application and the supporting documentation before the hearing; and

• to serve Miss DXI and Ms NBI with a notice of hearing.

15. The substantive hearing commenced in the late afternoon on 11 May 2016, and continued into the night. Miss DXI participated briefly in the hearing by telephone from the Intensive Care Unit of the public hospital, where she was supported by her mother and carer, Ms NBI, and her separate representative, Mr Sutherland.

16. The following health care professionals gave evidence by telephone:

• Dr SDP, Obstetrician at the public hospital, the applicant;

• Dr Y, Director of Medical Services, at the public hospital;

• Professor X, Renal Physician, at the same public hospital.

17. In addition to the application prepared by Dr SDP on 10 May 2016, the Tribunal considered the following documents:

• Health Professional Report Form, completed by Dr SDP on 10 May 2016;

• Report prepared on 9 May 2016 by Dr Z, Consultation Liaison Psychiatrist at the public hospital.

18. Dr SDP, the applicant, had indicated that, if the special medical treatment were to proceed, Dr W, Specialist Surgeon, would undertake the termination of Miss DXI's pregnancy. The Tribunal was unsuccessful in its attempt to make contact by telephone with Dr W during the hearing itself. During a break in the proceedings, Dr W did make brief contact by telephone with the Tribunal, but he did not participate in the hearing itself, and he did not give any evidence to the Tribunal.

19. It is difficult to imagine a more significant decision for Miss DXI, in her current circumstances, than one which could lead to the termination of her pregnancy against her wishes. At the conclusion of the hearing, the Tribunal reserved its decision. The Tribunal reached its decision on the morning of Thursday 12 May 2016, and immediately issued its order.

Disclosure

20. At the commencement of the hearing, the Tribunal disclosed to the participants that, on the evening of Friday, 6 May 2016, the Presiding Member had spoken by telephone with Dr Y, the Director of Medical Services of the public hospital. The Presiding Member was, on 6 May 2016, in charge of the Tribunal's after-hours emergency service, and he was available to convene any after-hours hearings that might then have been required.

21. The Tribunal disclosed on 11 May 2016 that Dr Y had contacted the Tribunal on its after-hours service to seek information relevant to a 19-year old woman who reportedly had an intellectual impairment, and a severe renal disease, and who was 20 weeks pregnant. Dr Y did not identify the patient by name. Dr Y sought some information concerning the legal regime that might apply if a termination of the young woman's pregnancy were to be considered. The Presiding Member had then alerted Dr Y to the urgent treatment provisions in section 37 of the Guardianship Act. Those provisions permit the carrying out of medical or dental treatment upon a patient without consent being given in accordance with Part 5 of the Guardianship Act.

22. No participant in the hearing on 11 May 2016 expressed any concern about the Presiding Member continuing to sit as a Member of the Tribunal for the purposes of the current proceedings involving Miss DXI.

Miss DXI's own views

23. The Tribunal took care to provide Miss DXI with the opportunity to express her own views during these proceedings.

24. Miss DXI was asleep at the commencement of the hearing. However, later in the hearing, Ms NBI informed the Tribunal that her daughter was now awake, and was listening to the proceedings. The Tribunal then spoke with Miss DXI, and the following exchange (reproduced verbatim) took place:

Member: "Do you know what we're talking about here today, [Miss DXI]?"

[Miss DXI]: "Yes."

Member: "And what do you think it is we are talking about?"

[Miss DXI]: "You're talking about if I can keep the baby or not keep the baby."

Member: "And what do you think about that?"

[Miss DXI]: "I want to keep the baby."

Member: "And the doctors have written us some reports saying that it would be very, very, very dangerous for you to do that, and I think that they’ve told you that as well."

[Miss DXI]: "Yes."

Member: "And what do you think about that?"

[Miss DXI]: "I don't know."

Member: "What have they told you about the problems if you were to go ahead with this pregnancy?"

Mr Stuart Sutherland (separate representative): "Tribunal, she is just starting to cry, and she has handed me back the phone."

25. Miss DXI then withdrew from the proceedings.

Evidence presented in support of the application

26. During the hearing, Dr SDP told the Tribunal that Miss DXI was then 21 weeks pregnant. She was admitted to the public hospital when she was 16 weeks pregnant, because dialysis was needed to maintain her pregnancy. From two weeks after her admission, Miss DXI was given medications for blood pressure that are safe to use during pregnancy. This intensive treatment was to protect Miss DXI's own health, and that of the foetus.

27. Dr SDP indicated that he and his colleagues now proposed to terminate Miss DXI's pregnancy by a procedure similar to a caesarean section, under general anaesthetic. The termination was proposed because Miss DXI had developed pre-eclampsia, a condition which can result in unmanageable blood pressure. He gave evidence that Miss DXI was at risk of an eclamptic seizure or a stroke if her blood pressure were to reach dangerously high levels. Dr SDP also confirmed that it would be very difficult to prolong Miss DXI's pregnancy for another three to four weeks.

28. In reply to questions asked by the Tribunal concerning the legal tests to be applied, Dr SDP expressed the view that the proposed treatment was necessary to save Miss DXI's life. Dr SDP also expressed the clear view that the proposed treatment was necessary to prevent serious damage to Miss DXI's health, and it was also the most appropriate form of treatment for promoting and maintaining Miss DXI’s health and well-being.

29. Dr SDP added that the hospital's ability to act would arise only within the next two or three days following the hearing. He stated that there would be a need to deliver the foetus within the coming 24 to 48 hours. The procedure was to be undertaken by Dr W, a Specialist Surgeon.

30. Dr SDP acknowledged that it would be very unlikely that the foetus would survive if it were to be delivered then. After some reflection, Dr SDP acknowledged that there was no chance of survival if the foetus were to be delivered then.

31. Dr SDP gave evidence that, if the pregnancy were to continue, Miss DXI would be at significant risk of permanent cerebral damage, or possibly death. Dr SDP acknowledged that there is a risk that Miss DXI could die from pre-eclampsia complications if her pregnancy were to continue. On the other hand, a termination of Miss DXI's pregnancy would arrest the process of pre-eclampsia over days. Miss DXI could have the option, in the future, of a renal transplant.

32. The Tribunal heard oral evidence from Professor X, a Renal Physician at the public hospital, who has extensive experience with pregnant patients. Professor X stated that, without the intensive treatment given to Miss DXI since her hospital admission, the foetus would have died at an earlier stage in the pregnancy, and Miss DXI would have experienced a miscarriage. The treatments that were given to manage Miss DXI's kidney failure and blood pressure were not expected to harm the foetus. However, Professor X expressed concern that Miss DXI had been receiving maximal treatment with medications that are safe to use in pregnancy.

33. Professor X gave evidence that Miss DXI's blood pressure was gradually worsening. He said that it was difficult to comment on the urgency of the proposed procedure. However, he thought it likely that Miss DXI would experience extreme blood pressure within the coming seven days, and this was likely to lead to severe hypertension, or a stroke, or severe liver complications.

34. Professor X then confirmed that it was likely that Miss DXI would experience a serious medical problem within the coming few days. In his view, the proposed procedure was urgent.

35. Dr Y, the Director of Medical Services of the public hospital, stated that the treating team did not know when the proposed treatment might become a matter of urgency.

Legislative framework

36. The Guardianship Act ("the Act") establishes a regime for providing substitute consent for treatment.

37. Any treatment that is carried out for the purpose of terminating pregnancy falls within the category of special medical treatment [section 33(1) and Guardianship Regulation 2010 (NSW), clause 9(a)]. Under the consent regime created by the Act, the Guardianship Division of the NSW Civil and Administrative Tribunal may provide consent to special medical treatment for a person who is incapable of providing her own consent to that treatment.

38. Before the Tribunal may give consent to the special treatment proposed for Miss DXI, the termination of her pregnancy, it must be satisfied that:

• Miss DXI is incapable of giving consent to the proposed special treatment [section 34(1)(b)]; and

• the proposed special treatment is the most appropriate form of treatment for promoting and maintaining Miss DXI’s health and well-being; and

• the treatment is necessary to save Miss DXI’s life; or

• the treatment is necessary to prevent serious damage to Miss DXI’s health [section 45(1) and (2)].

39. The Tribunal is subject to other specific requirements set out in section 44 of the Act. Among those requirements, if the Tribunal is to provide consent to treatment, it must be satisfied that it is "appropriate for the treatment to be carried out". The Tribunal must also have regard to the views of the patient, the person who is proposing that the medical treatment be carried out on the patient, any persons responsible for the patient, the matters referred to in the application itself, and the objects of Part 5 of the Act.

40. The objects of Part 5 are:

• to ensure that people are not deprived of necessary medical or dental treatment merely because they lack the capacity to consent to the carrying out of such treatment; and

• to ensure that any medical or dental treatment that is carried out on such people is carried out for the purpose of promoting and maintaining their health and well-being [section 32].

Principles underpinning the Tribunal’s decisions

41. Parliament has provided guidance as to the principles to be observed when the Tribunal exercises its functions. The Tribunal, when exercising its Division functions for the purposes of the Guardianship Act in relation to persons who have disabilities, is also under a duty to observe the principles referred to in section 4 of that Act [Civil and Administrative Tribunal Act 2013 (NSW), Schedule 6, clause 5].

42. The Tribunal records that, in reaching its decisions, the Tribunal had particular regard to the following principles:

• Miss DXI’s welfare and interests should be given paramount consideration;

• the freedom of decision and freedom of action of Miss DXI should be restricted as little as possible;

• Miss DXI should be encouraged, as far as possible, to live a normal life in the community;

• Miss DXI’s views in relation to the exercise of those functions should be taken into consideration;

• the importance of preserving Miss DXI’s family relationships and her cultural environment should be recognised; and

• Miss DXI should be encouraged, as far as possible, to be self-reliant in matters relating to her personal and domestic affairs.

THE ISSUES FOR DECISION

Does the Tribunal have jurisdiction to make an order providing consent for the termination of Miss DXI's pregnancy?

43. The Tribunal's jurisdiction to provide substitute consent is to be found in Part 5 of the Act. Part 5 applies to a patient:

• who is of or above the age of 16 years; and

• who is incapable of giving consent to the carrying out of medical or dental treatment [section 34(1)].

44. A person is incapable of giving consent to the carrying out of medical or dental treatment if he or she is:

• incapable of understanding the general nature and effect of the proposed treatment; or

• incapable of indicating whether or not he or she consents, or does not consent, to the proposed treatment being carried out [section 33(2)].

45. The issue of Miss DXI's decision making capacity, and whether or not she is a person to whom Part 5 applies, was the central issue for consideration in this case. There was no submission in these proceedings that Miss DXI was incapable of indicating whether or not she consented, or did not consent, to the proposed treatment. Accordingly, the Tribunal's jurisdiction depended on it making a finding that Miss DXI was incapable of understanding the general nature and effect of the proposed treatment.

Is Miss DXI incapable of giving consent to the proposed special treatment?

46. There was no evidence before the Tribunal of any clinical assessments of Miss DXI's decision-making capacity.

47. Dr Z, Consultation Liaison Psychiatrist at the public hospital, stated in her written report of 9 May 2016 that she had obtained Miss DXI's history from her mother and carer, Ms NBI. Ms NBI had informed Dr Z that Miss DXI has an intellectual disability, which was identified at least by late primary school. Miss DXI required special classes. She left school at age 14, and has limited reading and writing abilities. Dr Z reported that Ms NBI had informed her that Miss DXI would only consent to a termination if her life was in danger.

48. Dr Z stated that she had met Miss DXI and her mother on 6 and 9 May 2016. However, Dr Z reported that Miss DXI had been unwilling or unable to discuss her difficult situation with her. Dr Z indicated that Miss DXI had been unhappy that Dr Z had roused her, and she was unwilling or unable to participate in a conversation with Dr Z. Dr Z reported that Miss DXI became tearful when Dr Z discussed both the termination and the risks to Miss DXI if she were to continue her pregnancy. Dr Z noted: “I inferred that she had some understanding of the sadness of the situation.”

49. Dr Z reported that Miss DXI has not been able to demonstrate that she understands her medical condition (hypertension in the context of pregnancy and renal failure), the treatment choices available (termination or continuation of her pregnancy), and the consequences of these treatments. Dr Z stated that Miss DXI has not been able to demonstrate the ability to weigh up these choices, make a decision, and communicate this decision. Dr Z did not believe that Miss DXI has the capacity to refuse (or consent to) a termination of her pregnancy.

50. Dr Z also indicated in her written report that there was uncertainty that Miss DXI's "current apparent decision to continue her pregnancy is actually her decision".

51. In his application and report, Dr SDP stated that Miss DXI has had an intellectual disability since primary school, but he described her intellectual disability as static. As was noted earlier, Dr SDP had stated in his application that Miss DXI's intellectual disability prevents her clinicians from being able to assess whether she fully understands the implications of her medical illness, and why her pregnancy should not continue. Dr SDP acknowledged that it was unclear whether Miss DXI had a clear understanding of the implications of allowing her pregnancy to continue.

52. Dr SDP stated in his written report that Miss DXI "might understand the nature and effect of the proposed treatment". However, according to Dr SDP, Miss DXI does not convey her thoughts in words on this matter. Dr SDP wrote that Miss DXI has not clearly demonstrated that she is aware of the available choices and their consequences. Dr SDP also reported that Miss DXI has not communicated a decision about the proposed treatment. Nevertheless, during the hearing, Dr SDP gave evidence that Miss DXI has shaken her head to indicate that she did not want to have a termination of her pregnancy.

53. Dr SDP stated in his written report that Miss DXI "does not wish to have a termination of pregnancy unless she is in serious danger to her health". Earlier in that same report, Dr SDP stated that Miss DXI "does not wish to have a termination unless there is serious danger to herself". In his written application to the Tribunal, Dr SDP had stated that Miss DXI does not agree to the termination of pregnancy "unless immediately life threatening". Dr SDP indicated that Ms NBI had been the source of his information concerning Miss DXI's views.

54. In her written report, Dr Z also stated that Ms NBI had told her that Miss DXI "would only consent to a termination if her life was in danger."

55. In answer to questions from the Tribunal, Dr SDP gave evidence concerning Miss DXI's understanding of the general nature and effect of the proposed treatment. The following exchange (reproduced verbatim) took place:

[Dr SDP]: "I think she understands what a termination of pregnancy is."

. . .

Member: "Do you think she is capable of understanding the general nature and effect of the treatment you are proposing for her?"

[Dr SDP]: "Yes. I’m not certain she understands our reasoning why we think that this is suggested."

Member: "So, she is capable of understanding the general nature and effect of the treatment as far as you are concerned, and she has indicated that she does not consent to it?"

[Dr SDP]: "At the moment, yes."

56. Both Dr SDP and Dr Z noted in their written reports that Miss DXI's mother, stepfather, and her maternal grandmother in principle do not believe in termination of pregnancy.

57. Ms NBI told the Tribunal during the hearing that her daughter does have an intellectual disability, and she said that Miss DXI has limited reading and writing abilities. Nevertheless, she disagreed with the reports about the extent and impact of her daughter’s intellectual disability. Ms NBI insisted that Miss DXI is capable of making her own balanced decision concerning the proposed treatment, that is, the termination of her pregnancy. According to Ms NBI, Miss DXI has clearly told her separate representative, Mr Stuart Sutherland, that she does not want the proposed termination to proceed. Ms NBI added that Miss DXI does not talk to her doctors about the proposed treatment because it upsets her to do so.

58. As was noted above, Miss DXI participated briefly in the hearing. She told the Tribunal quite clearly that she wanted to keep her baby.

Views of the separate representative

59. Mr Stuart Sutherland, Miss DXI's separate representative, referred to the written report prepared by Dr Z, and he acknowledged that there would be very serious risks to Miss DXI's health if her pregnancy were not to be terminated within the next few days. Mr Sutherland advised that the proposed treatment was urgently necessary to save Miss DXI's life, and he concluded: "You would consider making the order."

60. Mr Sutherland did not express any view to the Tribunal as to whether or not Miss DXI was able to provide her own consent for the proposed termination of her pregnancy.

THE TRIBUNAL'S DECISION

61. As was noted above, a person is incapable of giving consent to the carrying out of medical or dental treatment if he or she is:

• incapable of understanding the general nature and effect of the proposed treatment; or

• incapable of indicating whether or not he or she consents, or does not consent, to the proposed treatment being carried out [Guardianship Act, section 33(2)].

62. In determining whether a person is incapable of understanding the general nature and effect of the proposed treatment, the Tribunal must consider a whether the person is incapable of understanding the general nature of the proposed treatment, and also whether the person is incapable of understanding the general effect of the treatment [C v Guardianship and Administration Board [2002] TASSC 29, [3], a decision of the Tasmanian Supreme Court that considered the relevant Tasmanian legislative provision that was expressed in identical terms to section 33(2)(a) of the Guardianship Act].

63. The former Guardianship Tribunal of New South Wales had stated that "understanding the general nature and effect" of the proposed treatment

entails a degree of weighing up of information about the proposed medical treatment, as well as understanding and retaining the information provided [TAC [2010] NSWGT 23 (23 July 2010), at [12]].

64. At common law, there is a presumption that an adult person has capacity, although that presumption may be rebutted by evidence. It is well established that decision-making capacity is dependent on the context, and the decision to be made. The fact that a person might make a decision considered by others to be unwise, or even wrong, does not of itself demonstrate a lack of decision-making capacity.

65. The NSW Supreme Court provided an overview of the common law principles in Hunter and New England Area Health Service v A [2009] NSWSC 761, a decision of Hon Justice McDougall, at [23]-[25]:

There is a presumption of capacity, whereby an adult is presumed to have the capacity to consent or to refuse medical treatment unless and until that presumption is rebutted…

In this context, it is necessary to bear in mind that there is no sharp dichotomy between capacity on the one hand and want of capacity on the other…In assessing whether a person has capacity to make a decision, the sufficiency of the capacity must take into account the importance of the decision.

66. In a more recent Supreme Court decision [Re JS [2014] NSWSC 302], Hon Justice Darke applied Hunter and New England Area Health Service v A, and stated at [18]:

In deciding whether a person has capacity to make a particular decision, the ultimate question is whether the person suffers from some impairment or disturbance of mental functioning so as to render him or her incapable of making the decision. That will occur if the person is unable to comprehend and retain the information which is material to the decision, in particular as to the consequences of the decision, or is unable to use and weigh the information as part of the process of making the decision.

67. The evidence before the Tribunal was that the general nature of the proposed treatment was to terminate Miss DXI's pregnancy immediately, at a time when the foetus was not able to survive. According to that evidence, the primary intended effect of the treatment was to arrest the natural progression of Miss DXI's pre-eclampsia condition. If the treatment were not to be undertaken, the natural progression of her condition would be that her blood pressure would gradually worsen, although it may be intermittent, until it is unmanageable.  The evidence showed that the possible consequences of severe and unmanageable high blood pressure are stroke, renal failure, liver failure, haemorrhage and the remote possibility of death. The primary intention of the proposed treatment was to act before, and in time, to prevent these potentially catastrophic outcomes.

68. However, an inevitable effect of the proposed treatment would be the loss of Miss DXI's pregnancy, and the foetus.  This was because to achieve the primary intended outcome, the treatment to end the pregnancy would need to occur before the foetus could possibly survive.

69. The Tribunal took as its starting point the principle that, as an adult, Miss DXI is presumed to have the necessary capacity to consent to the proposed treatment. The Tribunal than had to consider whether the evidence presented in these urgently convened proceedings was sufficient to rebut that presumption, and to show that Miss DXI was incapable of understanding the general nature and effect of the proposed treatment.

70. Neither the applicant, Dr SDP, nor his colleagues at the public hospital, presented any formal or clinical assessment evidence to the Tribunal to demonstrate that Miss DXI has an intellectual disability. Instead, they each relied on the history provided by Miss DXI's mother and carer, Ms NBI. However, during the hearing, Ms NBI insisted that any disability her daughter might now have relates to her reading and writing ability. Indeed, Ms NBI insisted that her daughter is capable of making her own decision concerning the proposed termination of her pregnancy.

71. In short, there was no clinical evidence before the Tribunal to establish that Miss DXI now has, or indeed ever had, an intellectual disability. However, even if Miss DXI were to be shown to have an intellectual disability, that would not of itself mean that she lacked the capacity to make an informed decision about the proposed termination of her pregnancy.

72. The Tribunal gave very careful consideration to the written report prepared by Dr Z, Consultation Liaison Psychiatrist at the public hospital. Dr Z reported that Miss DXI has not been able to demonstrate that she understands her medical condition, the treatment choices available, and the consequences of these treatments. Dr Z added that Miss DXI has not been able to demonstrate the ability to weigh up these choices, make a decision, and communicate this decision. Accordingly, Dr Z did not believe that Miss DXI has the capacity to refuse (or consent to) a termination of her pregnancy.

73. Nevertheless, the Tribunal notes that Dr Z's report concerning Miss DXI's intellectual disability was based on information provided by Ms NBI, a fact acknowledged in Dr Z’s report. Dr Z did not provide the Tribunal with the results of any formal testing of Miss DXI's intellectual ability, or of her decision-making capacity. Dr Z did not suggest that she herself had undertaken any capacity assessment of Miss DXI. Instead, Dr Z recorded in her report that Miss DXI had been unwilling or unable to participate in a conversation with her. Dr Z was not available to give oral evidence to the Tribunal during the hearing.

74. Even if Miss DXI had not demonstrated to Dr Z the relevant understanding, this did not, in the Tribunal's view, warrant the inference that Miss DXI is incapable of understanding the general nature and effect of the proposed treatment. An inability or unwillingness on Miss DXI's part to discuss, with members of her treating team, her understanding of her medical condition, and her reasons for not consenting to the recommended treatment, is an insufficient basis to conclude that Miss DXI is incapable of understanding the general nature and effect of the proposed treatment. Other inferences might have been drawn. It is entirely possible, for instance, that a 19-year-old woman with limited literacy skills, and who was experiencing the effects of a serious medical condition, may well have felt overwhelmed when asked for her reasons by medical specialists in an environment quite unfamiliar to her. Miss DXI may well have retreated into silence. Inaction on Miss DXI's part cannot, of itself, demonstrate a lack of capacity.

75. The Tribunal again emphasises that it is difficult to imagine a more significant decision for Miss DXI, in her current circumstances, than one which could lead to the termination of her pregnancy. Given the extremely serious consequences for Miss DXI if the Tribunal were to consent to the proposed termination of her pregnancy, it was crucial for the Tribunal to reach its decision based on the evidence presented to it concerning Miss DXI's ability to provide her own consent. It clearly would not have been sufficient for the Tribunal to have relied on an inference drawn from Miss DXI's reported failure to demonstrate her understanding of the relevant issues.

76. As previously noted, the applicant, Dr SDP, acknowledged that Miss DXI does understand the nature of the proposed termination of her pregnancy, although Dr SDP was not certain that Miss DXI understands the treating team's reasons for proposing the treatment. Shortly afterwards, and in answer to a question from the Tribunal, Dr SDP confirmed that Miss DXI is capable of understanding the general nature and effect of the treatment, and that she has indicated that she does not consent to it.

77. Further, it was clear from Dr SDP's evidence that Miss DXI's refusal to consent to the termination of her pregnancy was not absolute. According to that evidence, Miss DXI would not consent to the termination of her pregnancy unless this was immediately life-threatening, or the pregnancy posed immediate serious danger to herself. Dr Z had also stated in her written report that Ms NBI had told her that Miss DXI "would only consent to a termination if her life was in danger".

78. It was apparent to the Tribunal that Miss DXI had certainly undertaken some balancing of the information given to her by her health care professionals. Specifically, Miss DXI had balanced the potential risks to herself (when the risks are less than immediately life-threatening) against the termination of her pregnancy.  Miss DXI had considered the effect of the proposed treatment that mattered most to her, namely, the loss of the foetus. This was not an absolute refusal to consider the proposed treatment. It was conditional, and it indicates that Miss DXI had made a decision.

79. Miss DXI's decision not to terminate her pregnancy is consistent with the steps she has taken to protect her pregnancy, such as coming to Sydney for intensive medical treatment, including very frequent haemodialysis (six times each week), as well as episodic admissions to the Intensive Care Unit of the public hospital on intravenous treatments.  As a result of this intensive treatment, the pregnancy and foetus have progressed normally. Professor X gave evidence that, without those treatments, it is most likely that the pregnancy would have failed, and Miss DXI would have had a spontaneous miscarriage.

80. The Tribunal attached significance to the evidence of Dr SDP that, when Miss DXI was 16 weeks pregnant, she said that she wanted to do her best for the pregnancy. It was apparent to the Tribunal that, to date, Miss DXI's treatment decisions have all been to protect the foetus.

81. The Tribunal referred above to the common law presumption that an adult person has capacity. The evidence presented to the Tribunal at the urgently-convened hearing on 11 May 2016 was not sufficient to rebut that presumption. For the reasons outlined above, the Tribunal was not satisfied, on the evidence available to it, that Miss DXI is incapable of understanding the general nature and the effect of the proposed treatment. Accordingly, the Tribunal could not be satisfied that Miss DXI is a person to whom Part 5 of the Guardianship Act applied, and hence the Tribunal lacked the jurisdiction to make the order sought in these proceedings.

82. The Tribunal records that it did not make a finding that Miss DXI was capable of understanding the general nature and effect of the proposed treatment. Instead, the evidence before the Tribunal on 11 May 2016 did not warrant a finding that she was incapable of understanding the general nature and effect of the proposed treatment.

APPLICATION DISMISSED

83. The Tribunal dismissed the application lodged by Dr SDP in which he requested the Tribunal to consent to special medical treatment, being the termination of Miss DXI’s pregnancy. The Tribunal was not satisfied that Miss DXI is incapable of understanding the general nature and the effect of the proposed treatment. Accordingly, the Tribunal could not be satisfied that Miss DXI is a person to whom Part 5 of the Guardianship Act applied, and hence the Tribunal lacked the jurisdiction to make the order sought in these proceedings.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 28 June 2016