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,…