EW - [2021] WASAT 111

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   EW [2021] WASAT 111
MEMBER:   PRESIDENT PRITCHARD
MR J MANSVELD, SENIOR MEMBER
DR L FARRELL, SENIOR SESSIONAL MEMBER

HEARD:   10 AUGUST 2021
ORDERS MADE     :   10 AUGUST 2021
PUBLISHED           :   26 AUGUST 2021
FILE NO/S:   GAA 3041 of 2021

EW
Represented Person
CD
Applicant

Catchwords:

Guardianship - Application by guardian for Tribunal's consent to sterilisation - Proposed sterilisation by tubal ligation - Whether represented person had capacity to consent to sterilisation procedure herself - Presumption of capacity in s 4 of the Guardianship and Administration Act 1990 (WA) rebutted - No basis to review guardianship orders - Factors relevant to determining whether a sterilisation procedure is in a person's best interests - Tribunal satisfied sterilisation procedure in person's best interests - Consent of Tribunal given

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 4(3), s 4(7), s 13(e), s 45(2), s 45(4A), s 51(1), s 51(2), s 56, s 56A, s 57(1), s 58(1), s 59(1), s 63(1)

Result:

Application allowed

Category: A

Representation:

Counsel:

Represented Person	:	N/A
Applicant	:	N/A

Solicitors:

Represented Person	:	N/A
Applicant	:	N/A

Case(s) referred to in decision(s):

JS and CS [2009] WASAT 90
PG [2021] WASAT 81
Re Jane (1988) 94 FLR 1
S and SC [2015] WASAT 138
Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Ms EW is the subject of guardianship and administration orders made by the Tribunal pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act) on 2 March 2021 (guardianship orders). Amongst other things, in the guardianship orders the Tribunal appointed the Public Advocate to be the limited guardian for Ms EW, with authority to decide where she was to live, and with whom, to make treatment decisions for her, subject to Division 3 of Part 5 of the GA Act, to determine what contact Ms EW should have with others, to determine the services to which she should have access, to consent to the use of restraint in the interests of Ms EW's health and safety, and to act as Ms EW's next friend in legal proceedings, other than proceedings in relation to her estate.
Ms EW is 41 years of age. She has been diagnosed as suffering from treatment refractory schizophrenia (condition). While her symptoms fluctuate, this is a chronic condition which can unpredictably relapse and when that occurs, Ms EW can become very seriously unwell, and her cognitive ability may be significantly impaired.
Since January 2021, Ms EW has been an inpatient in a mental health unit (hospital) for treatment for a relapse of her condition.
Ms EW is also pregnant, and is scheduled to deliver her baby by caesarean section in September 2021.
Ms EW wishes to have a sterilisation procedure, namely a tubal ligation (sterilisation procedure) at the time of her planned caesarean section. She has reached that view having had considered discussions with her medical practitioners and others supporting her.
Ms CD, the delegate of the Public Advocate, who is Ms EW's guardian, made an application to the Tribunal pursuant to s 59 of the GA Act, for the Tribunal's consent to the carrying out of that sterilisation procedure on Ms EW (Application).
Three issues arose from the Application and the evidence we received in relation to it. The first was whether Ms EW had the capacity to consent to the sterilisation procedure herself, notwithstanding that a guardian has been appointed for her. Secondly, if she had that capacity, what were the implications of that conclusion for the Tribunal's decision making functions - that is, whether the Tribunal should review the guardianship orders. Thirdly, if Ms EW did not have the capacity to consent, and remained a represented person, so that the Tribunal's consent was required, whether we were satisfied that the proposed sterilisation was in the best interests of Ms EW.
At the conclusion of the hearing we informed the parties that we were satisfied that Ms EW did not have the capacity to make reasonable judgments in respect of matters relating to her person and that she was incapable of looking after her own health and safety; that we were of the view that no occasion arose to review the guardianship orders; that as Ms EW remained a represented person, the Tribunal's consent was required before the sterilisation procedure could take place; and that we were satisfied that the sterilisation procedure was in Ms EW's best interests and that we would consent to it, subject to the condition that that sterilisation procedure be undertaken at the time when Ms EW undergoes the planned caesarean section. We made orders accordingly (Orders).
We told the parties that in due course we would publish our reasons for making the Orders. These are those reasons.

Factual background

Ms EW has a long history of mental illness dating back to the late 1990s. She was admitted to the hospital as an involuntary patient in January 2021, after suffering a relapse of her condition. That relapse was brought about by a combination of factors: she ceased using Clozapene, which is the medication which controls her condition (that was done under the supervision of her mental health practitioners, because at that stage she wanted to become pregnant); she was using methylamphetamine; and she had experienced significant stress as a result of leaving a violent relationship with her former partner.
When Ms EW has a relapse of her condition, she becomes very unwell, lacks insight into her condition, refuses to follow medical advice, presents as highly psychotic and paranoid, demonstrates poor judgment and is a vulnerable individual.
Ms EW has the support of her parents, who attended the hearing. But their relationship has sometimes come under strain when Ms EW's condition has resulted in her engaging in challenging behaviour.

The statutory framework relevant to the Application

A plenary guardian has authority, and a guardian with limited functions may be authorised, to make decisions on behalf of a represented person in relation to medical treatment.[1] However, a guardian is not permitted to consent to the sterilisation of a represented person except in accordance with Division 3 of Part 5 of the GA Act.[2]
[1] GA Act s 45(2).
[2] GA Act s 45(4A).
The term 'sterilisation' is not defined in the GA Act. The meaning of the word 'sterilise' in relation to a person is 'to cause to be unfruitful; to destroy the fertility of' and 'to deprive of fecundity; to render incapable of producing offspring'.[3]
[3] Oxford English Dictionary Online.
Under the GA Act, the term 'procedure for the sterilisation' is defined to not include a lawful procedure that is carried out for a lawful purpose other than sterilisation but that incidentally results or may result in sterilisation.[4]
[4] GA Act s 56.
No doubt because of the significant consequences of a procedure for the sterilisation of a person, the GA Act strictly regulates the circumstances in which the sterilisation of a represented person may take place, in a number of ways.
First, the GA Act prohibits a person from carrying out or taking part in any procedure for the sterilisation of a represented person unless certain conditions are met.[5] Those conditions are that both the guardian of the represented person, and the Tribunal, have consented in writing to the sterilisation; that all rights of appeal in respect of the Tribunal's grant of consent have lapsed or been exhausted; and that the sterilisation is carried out in accordance with any condition imposed under the GA Act.[6]
[5] GA Act s 57(1).
[6] GA Act s 57(1)(a) - (c).
Secondly, a guardian is not entitled to consent to the sterilisation of a represented person unless the consent of the Tribunal has been first obtained.[7]
[7] GA Act s 58(1).
Thirdly, the Tribunal has jurisdiction to give or withhold consent to the sterilisation of persons in respect of whom guardianship orders are in force.[8]
[8] GA Act s 13(e).
A represented person, her guardian or the Public Advocate may apply to the Tribunal for its consent to the sterilisation.[9]
[9] GA Act s 59(1).
Applications for the Tribunal's consent to the sterilisation of a represented person fall within the Tribunal's original jurisdiction. Such applications must be determined by a Full Tribunal.[10]
[10] GA Act s 56A.
The Tribunal may consent to the sterilisation of a represented person if it is satisfied that it is in the person's best interests.[11]
[11] GA Act s 63(1).
The term 'best interests' is not defined in the GA Act. Ascertaining what is in a person's best interests requires a judgment informed by all of the circumstances. Some insight into the variety of considerations which may inform that judgment can be discerned from s 51(2) of the GA Act, which describes how a guardian will act in the best interests of the represented person (as the guardian is obliged to do under s 51(1)). That section suggests that it will be in a represented person's best interests for them to live in the community and participate as much as possible in the life of the community; that to the greatest extent possible they are assisted to become capable of caring for themselves and making reasonable judgments in respect of personal matters; that they are protected from neglect, abuse or exploitation; that their wishes are taken into account as far as possible and their rights restricted to the least extent consistent with their proper protection; that their supportive relationships are maintained; and that their cultural, linguistic and religious environment is maintained.
In JS and CS,[12] the full Tribunal considered the operation of the provisions of Division 3 of Part 5 of the GA Act. We gratefully adopt the Tribunal's observations at [27] - [32]:
27The GA Act offers no specific guidance to the Tribunal when dealing with applications for sterilisation other than that it must be satisfied that the proposed procedure is in the best interests of the represented person.
28The meaning of 'best interests', in the context of sterilisation of a person with a disability, has been considered by the courts on a number of occasions.
29In Secretary, Department of Health and Community Services v JWB and SMB (Marion's case), the High Court said it is not possible to formulate a rule which would identify cases where sterilisation would be in a person's best interests. But it emphasised (at 259) that sterilisation is a 'step of last resort', meaning that alternative and less invasive procedures must have all failed or proven inadequate, and the court must be certain that no other procedure or treatment will work.
30The High Court said that sterilisation is a substantial invasion of a person's physical integrity and, in the case of a person with an intellectual disability who cannot herself consent to the procedure, it could never be authorised unless 'some compelling justification is identified and demonstrated': per Brennan J at 268. Similar principles were set out by the Full Court of the Family Court in ReJane.
31The Tribunal is also guided by the Protocol for Special Medical Procedures (Sterilisation) adopted in September 2003 by the Australian Guardianship and Administration Committee (now Council) whose membership includes the various tribunals, boards and courts exercising guardianship jurisdiction across Australia.
32The principles set out in the Protocol reflect and expand on the principles applying to guardianship matters generally. Specifically, they recognise that every person has the same basic human rights regardless of their capacity; the right to respect for his or her human worth and dignity as an individual; and the right to participate, to the greatest extent practicable, in decisions affecting them. Sterilisation is an option of last resort and, if there is a choice between a more or less intrusive and permanent form of treatment, the less intrusive way should be adopted unless it is, or would be, unsatisfactory.
(citations omitted)
[12] JS and CS [2009] WASAT 90.
The full Tribunal in that passage referred to the decision of the Family Court in Re Jane[13]. In that case, Chief Justice Nicholson identified nine factors of relevance to determining whether a sterilisation procedure was in the best interests of a person. Those nine factors were:
[13] Re Jane (1988) 94 FLR 1.
(i)the possibility that the person could, in fact, become pregnant;
(ii)the possibility that the person would experience trauma or psychological damage if she became pregnant or gave birth, and conversely the possibility of such damage from the sterilisation operation;
(iii)the likelihood of voluntary sexual activity or rape;
(iv)the inability of the person to understand reproduction or contraception and the likely permanence of that inability;
(v)the feasibility of less drastic means of contraception;
(vi)the advisability of sterilisation at the time of the application rather than in the future;
(vii)the ability of the person to care for a child;
(viii)evidence that medical or scientific advances may occur within the foreseeable future which may make possible either improvement of the person's condition or less drastic sterilisation procedures; and
(ix)demonstration that the proponents of sterilisation are seeking, in good faith, the best interests of the person, rather than their own or the public's convenience.
In identifying these factors, Chief Justice Nicholson was considering the case of a female child. That undoubtedly influenced the way the factors were framed. Nevertheless, the considerations underlying each of those factors are useful points of reference in considering whether sterilisation is in the best interests of an adult who is a represented person under the GA Act.
We will return to consider the application of these principles when we consider the question of what is in Ms EW's best interests.

Principles governing proceedings under the GA Act

Before turning to examine each of the three issues which arose from the Application, it is appropriate to recall that in dealing with proceedings under the GA Act, the Tribunal is required to observe the principles set out in s 4 of that Act. Of those principles, four warrant specific mention in the present context.
First, and most importantly, the primary concern of the Tribunal is the best interests of any represented person.[14] In applications under s 59, the best interests of the represented person is the sole criterion for the Tribunal's grant or refusal of consent to sterilisation for the represented person.[15]
[14] GA Act s 4(2).
[15] See s 63(1) of the GA Act.
Secondly, every person is presumed to be capable of, amongst other things, managing their own personal affairs and making reasonable judgments in respect of matters relating to their estate, until the contrary is proved to the satisfaction of the Tribunal.[16] That important presumption applies in respect of every application under the GA Act, including the present Application.
[16] GA Act s 4(3).
Thirdly, the principle of least restriction must also be observed by the Tribunal; that is, that the Tribunal must consider whether the needs of the represented person can be met in another way which is less restrictive of their personal freedom of decision and action. That principle also applies to the types of orders which can be made by the Tribunal.
Fourthly, in considering any matter relating to a represented person, the Tribunal is required, as far as possible, to seek to ascertain the views and wishes of the person concerned.[17] We have done so. We refer to Ms EW's views later in these reasons.

The evidence before the Tribunal on the Application

[17] GA Act s 4(7).

At the hearing of the Application, the Tribunal was assisted by evidence and submissions from:
·        Ms EW;
·        Ms CD, the delegate of the Public Advocate, Ms EW's guardian;
·Dr PO, the consultant psychiatrist who has been treating Ms EW for the past two months;
·Dr MS, the psychiatric registrar who was Ms EW's treating doctor between her admission in January 2021 until the end of July 2021;
·Dr JF, a general practitioner and obstetric officer who Ms EW and her guardian consulted in relation to the sterilisation procedure;
·        Mr HW, Ms EW's father;
·        Ms CW, Ms EW's mother.
Also in evidence were various reports prepared by Ms EW's treating practitioners and service providers, namely:
·        Reports of Dr MS, dated 7 July 2021 and 28 July 2021;
·        Report of Dr PO, dated 26 July 2021;
·Report of Dr TA, a psychiatric registrar who treated Ms EW earlier this year, dated 14 January 2021;
·        Report of Dr PS, consultant psychiatrist, dated 29 June 2011;
·        Report of Dr JN, psychiatrist, dated 6 September 2007;
·        Report of Ms HVS, social worker, dated 2 August 2021;
·        Report of Ms OP, social worker, dated 30 July 2021;
·        Report of Ms JA, clinical nurse specialist, dated 24 February 2021;
·        Report of Ms SE, social worker, dated 8 July 2011; and
·Report of Ms RS, social worker, undated (received by the Tribunal on 17 September 2007).
Also in evidence was a report provided by Ms CD, Ms EW's guardian, dated 3 August 2021.
We have taken all of this evidence into account, although we have placed the greatest weight on the most recent reports which deal with Ms EW's mental capacity, and the proposed sterilisation procedure.
In addition to this evidence, the Tribunal has had regard to the Protocol for Special Medical Procedures (Sterilisation) which was made pursuant to the approval of the Australian Guardianship and Administration Council on 6 May 2009. That protocol is a more recent version of the protocol referred to by the Tribunal in JS and CS. However, we have drawn the same principles from it as were referred to by the Tribunal in JS and CS (in the passage quoted above at [24]).

Whether Ms EW presently has the capacity to give consent to the sterilisation procedure

Although Ms EW is a represented person, for whom a guardian was appointed in March this year, the presumption of capacity in the GA Act, to which we earlier referred, nevertheless applies. The application of the presumption required that we consider whether, as at the date of the hearing, Ms EW had the capacity to make her own decision as to whether to undertake the sterilisation procedure. If so, that would raise the question whether the guardianship orders should be reviewed and discharged, so that Ms EW could give consent to the sterilisation procedure herself.
The absence of capacity to make decisions, as a prerequisite for the appointment of a guardian, underlies s 43(1)(b) of the GA Act. The proposed represented person must be incapable of looking after their own health and safety, unable to make reasonable judgments in respect of matters relating to their person, or in need of oversight, care or control in the interests of their own health and safety or for the protection of others. The inability to do any or all of these things may flow from a limitation or deficit in the person's cognitive functioning, whether that limitation or deficit is permanent or temporary in nature.[18]
[18] It is not presently necessary for us to consider whether a limitation or deficit in cognitive function is the only basis on which any of the criterion in s 43(1)(b) might be satisfied: cf S and SC [2015] WASAT 138.
Section 43(1)(b) of the GA Act thus deals with the question of capacity in a global sense - for example, by reference to whether the person is unable to make reasonable judgments about personal matters generally - rather than by reference to the question of capacity to make particular kinds of decisions. That reflects the approach taken to capacity in the GA Act as a whole. By way of example, s 4 of the GA Act refers to the presumption that a person is capable of looking after their own health and safety, and of making reasonable judgments in respect of matters relating to their person, rather than to whether they are able to make particular kinds of decisions. Similarly, in relation to administration, the question of capacity is judged by reference to whether the person is, by reason of a mental disability, unable to make reasonable judgments in respect of matters relating to all or any part of their estate.

Evidence of a person's inability to make particular kinds of decisions may, of course, inform the Tribunal's assessment of whether the presumption of capacity has been overcome in a particular case. If a person does not have the ability to make a decision about where he or she should live, or which services they should access, having regard to their individual needs, that may raise a question as to whether the inability is attributable to a lack of capacity to make reasonable decisions about personal matters. Medical evidence as to the explanation for the person's inability will ordinarily be of assistance to the Tribunal in that inquiry.
Bearing that in mind, we turn first to consider the medical evidence as to Ms EW's capacity.

Medical evidence as to Ms EW's capacity

By its nature, Ms EW's condition results in fluctuating capacity. Ms EW told us that she hears voices all the time. However, the other symptoms she experiences, and how they affect her, depend in part upon her compliance with her medication and treatment regime. When she has a relapse, Ms EW can become very unwell, experiencing symptoms such as psychotic episodes, perceptual disturbance (such as reduced orientation to time) and cognitive difficulties, including reduced recognition of boundaries. Because her symptoms can fluctuate, Ms EW's cognitive capacity to make decisions to enable her to look after her own health and safety, or to make reasonable judgments about personal matters, also fluctuates.
There is no doubt that in March 2021, when the Tribunal made the guardianship orders, Ms EW was very unwell indeed and lacked the capacity to look after her health and safety and to make decisions about personal matters. But it appears that there has been a significant improvement in her condition since then. The question for the Tribunal at the hearing was whether that improvement was such that the presumption that Ms EW had the capacity to look after her own health and safety and to make reasonable judgments about personal matters was displaced, on the evidence.

Evidence of Dr PO

Dr PO has been a psychiatrist since 2006. He has been the consultant psychiatrist with responsibility for Ms EW's care for the past two months. In his report of 26 July 2021, Dr PO expressed the view that Ms EW was capable of making reasonable decisions in relation to medical treatment, accommodation and services. In the hearing, he told us that Ms EW was able to make an informed decision in relation to the sterilisation procedure. He expressed the view that Ms EW did not require the assistance of anyone as a decision maker, whether in respect of personal or financial matters. Dr PO's view was that Ms EW was suitable for discharge from hospital, but that the reason for her continued admission was the difficulty in finding suitable accommodation. We asked Dr PO about the basis for these opinions.
Dr PO told us that he was only able to comment based upon Ms EW's presentation over the previous two months in which he had been treating her. Dr PO acknowledged that Ms EW continued to hear voices, but did not think that those auditory sensations affected her decision making ability at present. He reported that Ms EW had consistently discussed appropriate accommodation options, and the support she needed, for her discharge from hospital. He reported that Ms EW had been seeking out independent accommodation options for herself. He was confident that Ms EW was able to manage her financial affairs, but acknowledged that the evidence of that ability was confined to the limited funds she was able to access. Dr PO opined that Ms EW was able to make an informed decision about her pregnancy and what she should do in relation to the care of the baby, but acknowledged that her view on that question had vacillated over time. He attributed that vacillation to the variety of views that Ms EW received from those around her, rather than to any cognitive limitation. Dr PO acknowledged that Ms EW could appear to have difficulty in making decisions but he did not regard that as evidence of a limitation in her cognitive capacity but rather as a consequence of the fact that she was given multiple points of view from the many people supporting her.
Dr PO said that Ms EW had demonstrated insight into her condition. He pointed to the fact that at present, she understood the benefit of continuing to take Clozapene to manage her condition.
Dr PO considered that Ms EW was capable of making a decision in relation to whether she should undergo the sterilisation procedure. He had no concern about her capacity to make that decision for herself. In his view, Ms EW was aware of the potential complications and of the outcomes of that procedure, and had consistently maintained her desire to undergo that procedure.
We asked Dr PO about the difference between his view and that of Dr MS (which we discuss below). Dr PO did not argue against Dr MS' judgment, but maintained that he had reached a different conclusion based on his own assessment of Ms EW over the past two months.

Evidence of Dr MS

Dr MS had a very different view of Ms EW's capacity. Dr MS is a medical practitioner, who is currently undertaking the training programme to qualify as a psychiatrist. As we have noted, while a registrar at the hospital he treated Ms EW for six months, from her initial admission in January until the end of July 2021. While he was directly involved in Ms EW's care, he was at all times under the supervision of consultant psychiatrists - initially Dr C and more recently Dr PO.
In his report of 7 July 2021, Dr MS reported that while significant improvement in Ms EW's mental state had been achieved during her stay in hospital, she remained chronically unwell, and that treatment of her condition had been complicated by restrictions on treatment options as a result of her pregnancy. He reported that Ms EW continued to demonstrate ongoing psychotic phenomena characterised by perceptual disturbance and cognitive difficulties.
In his report of 28 July 2021, Dr MS advised that he was unsure as to whether Ms EW had the capacity to make reasonable decisions of various kinds, such as in relation to medical treatment, or accommodation, or services. He reported that Ms EW was then engaging with medical services appropriately and was able to discuss key aspects of her treatment, mostly in a rational manner. However, he reported that Ms EW still noticed the impact of bizarre thought processes, which caused her distress. Dr MS noted that Ms EW was increasingly engaged with the concept of support but fluctuated in her acceptance of support in relation to matters such as accommodation, although she had recently been more agreeable and recognised the benefit of supported accommodation.
We asked Dr MS about Ms EW's cognitive capacity at the time when he last treated her (that is, at the end of July 2021). He reported that she continued to have strange and bizarre thought processes, and his view was that her cognitive ability appeared to fluctuate. He reported that Ms EW continued to hear voices, and to have some paranoia and persecutory thought processes. She experienced these auditory sensations 24 hours a day. Ms EW had to consciously try to exclude these thoughts. Although she endeavoured to do that, Dr MS' view was that Ms EW remained susceptible to being affected in her decision making by these disturbances. Dr MS' view, therefore, was that Ms EW still did not have the capacity to make decisions about personal matters.
Having said that, Dr MS was satisfied that Ms EW was able to follow a rational train of thought in discussions about her contraceptive options, and was satisfied that she understood the implications of the sterilisation procedure.

Conclusion in relation to the medical evidence as to Ms EW's capacity

We accept that the evidence of Dr PO and Dr MS represented their genuinely held opinions based on the information available to them.
Dr PO had greater experience as a psychiatrist, while Dr MS was undergoing his training to qualify as a psychiatrist. Nevertheless, we gave greater weight to the evidence of Dr MS, for the following reasons.
First, while Dr MS was not fully qualified as a psychiatrist, he was qualified as a medical practitioner, and had been working as a registrar at the hospital. He was not without relevant knowledge or experience in the area of psychiatry. We regarded him as sufficiently qualified to give expert evidence as to Ms EW's capacity.
Secondly, Dr MS worked for a more extensive period with Ms EW, and had the advantage of seeing the symptoms of her condition over that lengthier period. In our view, that provided Dr MS with a greater perspective on her condition, as it affected her.
Thirdly, with respect, we did not find the basis for Dr PO's opinion as to Ms EW's decision-making capacity to be entirely persuasive. His confidence that she was able to make decisions in relation to accommodation, for example, was based on the fact that she had made some enquiries about independent living accommodation. However, her guardian later informed us that those enquiries were very preliminary in nature. Furthermore, having regard to Ms EW's complex mental health, she is likely to require specialist supported accommodation if she is to successfully transition into the community after her discharge from hospital. Ms EW's enquiries as to independent living options appeared to us to suggest a lack of appropriate insight into the extent of the support which she will need to assist her in that difficult transition, especially as it will take place after the birth of her child, which will undoubtedly be a very emotionally taxing and stressful time for her. In so far as Dr PO expressed the view that Ms EW was capable of making decisions in relation to financial matters, he acknowledged that that decision was based on her ability to manage the funds then available to her. As Ms EW had had an administrator since March 2021, it was not apparent to us that she had had to make any decisions concerning her finances, other than possibly with respect to how she spent such small amounts of money as her administrator made available for discretionary spending while she was in hospital.
Fourthly, we are respectfully of the view that Dr PO's opinion as to Ms EW's capacity did not place sufficient weight on the fact that whilst in hospital, Ms EW had not had to make the variety of decisions as to personal matters that are part of everyday life. Further, in so far as she had had to make, or to discuss, current or future decisions, she had done so in an environment where she was fully supported by medical practitioners, social workers and her guardian. The absence of such extensive support would inevitably give rise to sufficient additional stress for Ms EW. We were concerned that Dr PO's optimism about her cognitive capacity for decision making would not be borne out in that context.
Dr MS' view was sufficiently cogent, of itself, to overcome the presumption of capacity in s 4 of the GA Act. However, that was not the only evidence before the Tribunal in relation to the question of Ms EW's capacity. We turn to consider the balance of that evidence.

Evidence of Ms EW's family

Mr HW gave evidence as to Ms EW's condition, and how it had affected her life. He explained that when Ms EW was not in hospital, she tended to be unwell. While her medication assisted to control her symptoms, she nevertheless continued to experience symptoms. Mr HW gave the example that while Ms EW is always welcome to live with her parents, she was usually unable to stay for longer than a couple of days because the voices she constantly hears began to negatively intrude on her thinking, and that affected her relationship with her parents.
That evidence provided some support for the conclusion that even when the symptoms of Ms EW's condition were relatively well controlled she remained susceptible to them impacting on her thought processes.

Evidence of Ms CD

We also took into account the views of Ms EW's guardian in relation to her capacity. Ms CD told us that Ms EW had made some attempts to find private rental accommodation, but that Ms CD had instead referred her case to a provider of supported accommodation which was suitable for people with mental health difficulties. She said that Ms EW agreed with that referral.
Ms CD told us that most of the other discussions she had had with Ms EW had concerned what Ms EW proposed to do once her baby is born, and in relation to the sterilisation procedure. Ms CD reported that Ms EW had been quite insightful in those discussions, and had been able to weigh up the benefits and risks of various courses of action. Ms CD acknowledged that Ms EW sometimes became confused about what decision to make when faced with the different opinions of other people. Ms CD explained that it was not possible to ascertain how much of that confusion was attributable to her condition, or was explicable by other factors, such as the volume of information provided to Ms EW or the influence of the views of particular individuals. By way of example, Ms CD reported that Ms EW had been quite consistent in her view that she wanted her baby to be adopted, as she was aware of the risks that her own symptoms meant she may pose to her baby, and of the difficulties she would have in caring for her baby because of the symptoms of her condition. However, after Ms EW spoke with Dr PO about the proposed adoption, Ms EW began to doubt whether that was the best decision.
Ms CD continued to have doubts as to whether Ms EW yet had the capacity to make judgments about her personal affairs. She was also concerned about the additional stresses which would face Ms EW in the next few months, in the lead up to the delivery of her baby, and thereafter, and was very concerned about Ms EW's ability to independently cope with the many decisions which would need to be made concerning her baby, her accommodation following her discharge from hospital and so on. Ms CD's view was that in those circumstances, it was too soon to discharge the guardianship orders.

Ms EW's view

We invited Ms EW to give us her own views on her decision making capacity with respect to personal matters. While Ms EW was not qualified to give expert evidence as to her capacity, her views as to that question were nevertheless relevant, and her evidence in relation to the symptoms she presently experienced, and her own reflections on her mental health, were thoughtful and demonstrated some insight.
Ms EW said that the only symptom she was presently experiencing was hearing voices. She confirmed that for as long as she could remember, she had always heard voices in her head. She regarded that as a normal part of her life, and one which was not always a negative experience. She told us that she could dissociate herself from those voices, and that the experience was like hearing different opinions on things. She acknowledged that the Clozapene had a sedative effect which assisted her to stop over-thinking these thoughts.
Ms EW told us that she felt like a totally different person, as compared with the way she was in January 2021. She felt that she could think rationally now.
Ms EW impressed us with her insightful explanation of her thinking in relation to her pregnancy and her preference for the sterilisation procedure. (We discuss that part of her evidence later in these reasons.) Her explanation was quite rational, and was indicative of an increased ability for reasoning, at least in relation to that issue.
We asked Ms EW whether she wished the guardianship orders to remain in place. She told us that she would prefer to keep the guardianship orders in place until she was in a position to leave hospital. While her recognition of the benefit of the support of her guardian was itself indicative of rational thinking, it also indicated that while Ms EW felt much improved, she was not yet entirely confident that she would be able to independently make the decisions ahead without the support of a guardian.

Conclusion – Ms EW does not have capacity to make decisions in relation to personal matters

As the full Tribunal recently observed,[19]
[t]he Tribunal starts from the position that the [subject of the application] has capacity (by virtue of the statutory presumption). That remains the position unless and until a lack of decision-making capacity is proved. The question is whether the evidence before the Tribunal establishes that the [subject of the application] does not have decisionmaking capacity. The standard of proof applied by the Tribunal is, of course, the civil standard. However the significant consequences of a finding that a [person] does not have decision-making capacity are such that clear and cogent evidence will be required to establish the facts on which that conclusion depends, in order for the Tribunal to be satisfied on the balance of probabilities that the [person] does not have decision-making capacity.
[19] PG [2021] WASAT 81 [97].
While Ms EW had made significant improvements in recent months, the evidence of Dr MS was cogent evidence that Ms EW did not yet have the capacity to look after her own health and safety and to make reasonable judgments in respect of matters relating to her person. That evidence was sufficient to rebut the presumption of capacity in the GA Act.
Furthermore, Ms EW's history of living with the symptoms of her condition, her continuing experience of hearing voices, and the potential for those auditory sensations to interfere with her thinking processes, suggested that it would be unwise to too hastily conclude that she had fully recovered from the relapse of her condition to the point where she had the capacity to independently make her own decisions in relation to personal matters. That caution appeared all the more apt in light of the stress which Ms EW will inevitably experience in the next couple of months, as she deals with the delivery of her baby and the decisions which need to be made in relation to the baby's care. In that respect, we gave weight to Ms EW's preference for the guardianship orders to remain in place during this next stage of her life.
We were satisfied that the evidence rebutted the presumption of capacity in s 4 of the GA Act. We were satisfied that the evidence established that it was more likely than not that Ms EW did not have the capacity to look after her own health and safety or to make reasonable judgments in respect of matters relating to her person. We make that finding.
That conclusion meant that the second issue arising from the Application fell away, in that there was no basis for reviewing the guardianship orders as at the time of the hearing of the Application.
We turn, then, to explain the conclusion we reached in relation to the third and central issue arising from the Application - whether the Tribunal should consent to the sterilisation procedure.

Why we concluded that the Tribunal should consent to the sterilisation procedure

The sterilisation procedure is a 'procedure for sterilisation' within the definition of that term in the GA Act. There was no suggestion that the sterilisation procedure was proposed for any reason other than to sterilise Ms EW so that she would be unable to fall pregnant again. Dr JF explained that she counselled patients that a tubal ligation was not a reversible procedure, and we approached the Application on the basis that the sterilisation procedure would permanently and irreversibly render Ms EW unable to become pregnant.
Ms EW was a represented person for the purposes of the GA Act, and consequently the Tribunal's consent was required before the sterilisation procedure could be undertaken.
The Tribunal's consent could only be given if it was satisfied that the sterilisation procedure would be in the best interests of Ms EW.
It is convenient to commence by outlining our conclusion as to the evidence, by reference to the factors identified in Re Jane.

The possibility that Ms EW could become pregnant and the likelihood of sexual activity

These factors are in part directed to the question of whether there is a need for the sterilisation of the represented person. If there is no real likelihood that the person will engage in sexual activity, then it is difficult to see how a procedure for the sterilisation of that person - that is, one carried out for the purpose of rendering the person unable to have children - could be regarded as necessary, and in their best interests.
Ms EW is a sexually active adult. At the time of the hearing she was 41 years of age. While her maternal age may render her less likely to conceive as the years go by, it will nevertheless continue to be possible for her to become pregnant until she reaches menopause. There was clearly a need for Ms EW to have a reliable form of contraception for the foreseeable future. However that need, of itself, could not justify so extreme a measure as permanently rendering her unable to have children.

The possibility that Ms EW would experience trauma or psychological damage if she became pregnant or gave birth, and conversely the possibility of such damage from the sterilisation procedure

The evidence supported the conclusion that there would be real risks to Ms EW's health if she were to become pregnant again.
Dr MS explained that Ms EW's present pregnancy was planned, and that under the supervision of her then treating team, she ceased using Clozapene prior to falling pregnant. Dr MS' evidence was that Ms EW's condition was so treatment resistant that Clozapene was the only drug that had long term effects in managing her condition. However, if Ms EW were to cease the use of Clozapene then the potential existed that she would become very unwell indeed, as the present circumstances demonstrated. Dr MS' opinion was that it would not be advisable for Ms EW to cease using Clozapene.
Dr MS also explained that there have been few cases where women have become pregnant while using Clozapene and its consequences for a pregnancy were uncertain.
Dr PO's evidence was that it was not possible to predict what would happen in the future if Ms EW became pregnant while using Clozapene.
There appeared to us to be real unknowns about the physical consequences for Ms EW and her baby, were she to become pregnant while using Clozapene in the future. That of itself would be likely to cause considerable anxiety to Ms EW. We make that finding. If Ms EW were to cease using Clozapene before or during the pregnancy, then it is very likely, and we find, that that would lead to a significant deterioration in her mental health.
As for other impacts on Ms EW's mental health if she were to become pregnant again in the future, Dr PO felt unable to comment. Dr MS observed that there were many unknowns in that scenario, and that the impact on Ms EW's mental health may depend on the circumstances in which she became pregnant, such as whether or not the pregnancy was planned. However, Dr MS acknowledged that a future pregnancy may give rise to increased anxiety for Ms EW.
Ms EW's experience during her present pregnancy suggested that it was more likely than not that a future pregnancy would cause Ms EW considerable anxiety and emotional stress. Ms CD's evidence was that it had been extremely stressful for Ms EW to go through her present pregnancy. Ms CD reported that Ms EW's wish to have the sterilisation procedure was due to the anxiety and stress that this pregnancy had caused her, and that she did not feel mentally or emotionally able to manage another pregnancy.
Ms EW told us that her view was that if she became pregnant again, it would be a very difficult experience. She described her present pregnancy as having been a 'long road', and told us that she did not want to go through the experience again.
A factor that cannot be ignored in considering the impact on Ms EW of a further pregnancy is the increased risk of genetic complications for the baby as Ms EW's maternal age increases. In his report of 7 July 2021, Dr MS noted that during screening for her present pregnancy, Ms EW had been identified as having an elevated risk for foetal genetic complications. The existence of a risk of that kind is a cause for anxiety for any woman. Such a risk could only add to Ms EW's anxiety and stress in the event of a future pregnancy.
Furthermore, the prospect that a future pregnancy would give rise to considerable anxiety and emotional stress for Ms EW would likely be much increased if Ms EW were unable to care for the baby, and so had to face the prospect of the baby being taken into the care of the State, or making the difficult choice to give her child up for adoption. We discuss that matter further below.
Having regard to the evidence, we were satisfied that if Ms EW were to become pregnant in the future, it was more likely than not that she would experience considerable anxiety and emotional stress, and that would put a strain on her mental health. We make that finding.
We turn, next, to the risks to Ms EW of the sterilisation procedure itself. Dr JF's evidence was that a tubal ligation is ordinarily undertaken laparoscopically, and the only risks associated with that procedure are the risks associated with surgery generally. In the case of Ms EW, it is proposed that the sterilisation procedure be conducted at the same time as her baby is delivered by caesarean section. In other words, the sterilisation procedure will not require a separate surgical procedure. In those circumstances, we were satisfied that the sterilisation procedure itself would not pose any material health risk to Ms EW. We make that finding.

Ms EW's inability to understand reproduction or contraception

Notwithstanding our finding that Ms EW did not have the capacity to look after her own health and safety, and to make reasonable judgments in relation to personal matters, the evidence left no doubt that Ms EW had been able to have informed discussions with her medical practitioners about her contraceptive options for the future, and in relation to the sterilisation procedure.
Dr MS reported that Ms EW had discussed her contraceptive options, including the use of longterm contraceptives such as subcutaneous implants, or intra uterine devices, as well as permanent options, including the proposed sterilisation procedure. Dr MS reported that Ms EW was able to engage in these conversations 'rationally and logically' and was able to identify key considerations, including her age, the impact of her illness, the increased risk of birth defects, and that 'after much discussion, Ms EW identified her preference for tubal ligation'.
Ms EW told us that she wanted to undergo the sterilisation procedure to make sure that she could not fall pregnant, and to have certainty in her life. She was concerned that in the future, her condition might lead her to a state where she became delusional about her ability to care for a child, and did not want to have the risk of a pregnancy in those circumstances.
Ms EW explained that she had explored the option of a sterilisation procedure when she was in her thirties, and saw a specialist, but that they were reluctant to undertake the procedure at that stage because of her age. That served to illustrate that Ms EW's desire to undergo the sterilisation procedure was not a recent development, nor one which could be attributed solely to the difficulties she had experienced in her present pregnancy.
Dr JF's unchallenged evidence, which we accepted, was that having provided Ms EW with information about her contraceptive options, she encouraged her to go away and consider the matter, and then return for a second discussion. Dr JF's evidence was that having been advised of her contraceptive options, Ms EW expressed a desire for a more permanent form of contraception. Dr JF was satisfied that Ms EW understood the implications of undergoing the sterilisation procedure.
Having regard to this evidence, we were satisfied that Ms EW understood reproduction and contraception, and that she understood that the sterilisation procedure would render her unable to fall pregnant, and that it would be irreversible. We make that finding.

The feasibility of less drastic means of contraception

Dr JF provided counselling to Ms EW about all of her contraceptive options. Dr JF explained that the contraceptive pill was not recommended for Ms EW given her medical history and her age. It was also not regarded as likely to be as effective a form of contraception for Ms EW, given her circumstances. Dr JF's evidence was that the only appropriate contraceptive options available to Ms EW were the use of an intra-uterine device, or a subcutaneous implant, or a tubal ligation. We accepted that evidence.

The advisability of sterilisation at the time of the application rather than in the future

Having regard to the evidence, we were satisfied that it was advisable that the sterilisation procedure be undertaken at this point in time, rather than at some stage in the future. We make that finding. We reached that conclusion having regard to the absence of any material risk from the procedure itself (given it is to be undertaken following the delivery of Ms EW's child by caesarean section) and due to Ms EW's age and the increased risk factors for a pregnancy as her maternal age increased.

Ms EW's ability to care for a child

Ms EW's ability to care for her baby had been the subject of much discussion between Ms EW, her guardian, and those advising and supporting her. She had had discussions with officers of the Department of Communities, Child Protection and Family Support, in relation to whether keeping her baby would be feasible. However, given Ms EW's health, and the side effects of her use of Clozapene, Ms EW would require support for 24 hours a day to be able to look after her baby. Ms CD told us that Ms EW was aware of the risks that she may pose to her baby as a result of her condition.
Ms EW explained that in those circumstances, she had decided to give her baby up for adoption. She told us that that had been a very difficult decision for her, but that she had managed to hold herself together during the pregnancy. Ms EW told us that she had decided to have an elective caesarean section because a natural delivery would be more traumatic for her in circumstances where she would be giving the baby up for adoption.
We did not doubt the enormous anxiety and emotional stress that these decisions had involved for Ms EW. We did not have any doubt that Ms EW would experience further anxiety and emotional stress in the future as a result of her decision to give her baby up for adoption.

Whether there is any evidence that there is likely to be an improvement in Ms EW's condition in the future, or the development of alternative contraceptive options

There was no evidence as to the possibility of improved treatments or a cure for Ms EW's condition in the foreseeable future, or of the development of any more suitable means of contraception.

Whether the proponents of sterilisation are seeking it in good faith, in Ms EW's best interests, rather than their own or the public's convenience

This was not a case in which there was any suggestion that those supporting the Application were motivated by anything other than their belief that the sterilisation procedure was in Ms EW's best interests.
The Application was brought by Ms EW's guardian, Ms CD, because it was her view that the proposed sterilisation procedure was in line with Ms EW's wishes, and the recommendations of her treating team. It was Ms CD's view that the sterilisation procedure was in Ms EW's best interests, and she intended to consent to the procedure if the Tribunal gave its consent.
Ms EW's evidence was that the sterilisation procedure was first suggested by her family, but there was no evidence to suggest that Ms EW had been subjected to family pressure to undergo the sterilisation procedure.
Ms EW's parents supported the Application. This was not a case in which there was any reason to doubt that their support was motivated by anything other than concern for Ms EW's best interests. Ms EW's parents clearly cared deeply for her, and have tried to support her over the years as she has lived with her condition.
Dr MS considered that Ms EW's preference for the sterilisation procedure was a reasoned one, which was reached after rational and logical discussions. Dr PO considered that Ms EW's preference for the sterilisation procedure was an informed decision, and he had no concerns about her capacity to reach that decision. Dr JF's view was that, given Ms EW's advanced maternal age, and the increasing risks associated with a further pregnancy, Ms EW's preference for the sterilisation procedure was entirely reasonable.

Conclusion

In this case, the evidence strongly supported the conclusion that it was in Ms EW's best interests to undergo the sterilisation procedure.
That conclusion was strongly influenced by Ms EW's chronological age, her advanced maternal age (and the implications for her fertility, and the risks for future pregnancies to which that gave rise) and the adverse impact on her mental health of her current pregnancy (namely the significant anxiety and stress she had experienced). In those circumstances, we were satisfied that the sterilisation procedure could properly be regarded as an option of last resort.
However, if Ms EW were a younger woman, and if she had not already had the experience of a pregnancy (which has demonstrated the potential adverse impact of a further pregnancy on her mental health) we may well have been more attracted to the view that an impermanent form of contraception, such as the use of an intra-uterine device, would be in Ms EW's best interests.
Furthermore, although we found that Ms EW did not have the capacity to look after her own health and safety and to make reasonable judgments in relation to personal matters, we were satisfied that her preference for the sterilisation procedure had been informed by discussions with her treating team, and those supporting her. We not only took her view into account in this case, but gave it considerable weight in our overall analysis of what is in her best interests.
Finally, if Ms EW were not planning a caesarean section to deliver her baby, the risks associated with undergoing surgery for the sterilisation procedure may have loomed larger in our overall assessment of whether the sterilisation procedure was in Ms EW's best interests.
We found that it is in Ms EW's best interests to undergo the sterilisation procedure and we therefore gave our consent to the procedure. However, we concluded that our consent should be given on the condition that the sterilisation procedure should be undertaken at the same time as Ms EW's planned caesarean section.

Orders

The Orders we made were:
1.Pursuant to s 63(1) of the Guardianship and Administration Act 1990 (WA), the Tribunal is satisfied that the proposed sterilisation by tubal ligation (sterilisation) is in the best interests of the represented person, Ms EW.
2.The Tribunal consents to the sterilisation on the condition that it is undertaken at the same time as the planned caesarean section.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JK
Research Associate to the Honourable Justice Pritchard
26 AUGUST 2021