FXB - [2024] NSWCATGD 14

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FXB [2024] NSWCATGD 14
Hearing dates: 16 August 2024
Date of orders: 16 August 2024
Decision date: 16 August 2024
Jurisdiction: Guardianship Division
Before: B L Adamovich, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
K Laurence, General Member (Community)
Decision:
The application seeking consent for special medical treatment for FXB is dismissed after hearing because we were not satisfied that FXB is incapable of giving consent to the carrying out of the treatment.

Catchwords:
CONSENT TO MEDICAL TREATMENT – application for consent to special medical treatment – termination of pregnancy – patient with schizophrenia with a mood component and recurrent drug-induced psychosis – involuntary patient detained under the Mental Health Act 2007 (NSW) – application of Part 5 of the Guardianship Act 1987 (NSW) – whether the patient is incapable of giving consent – whether the patient is incapable of understanding the general nature and effect of the proposed treatment – presumption of capacity not rebutted – application dismissed

Legislation Cited:
Abortion Law Reform Act 2019 (NSW), s 5; Sch 1
Guardianship Act 1987 (NSW), ss 33(2), 34(1); Pt 5
Guardianship Regulation 2016 (NSW), reg 9
Mental Health Act 2007 (NSW), ss 22, 72; Pt 3

Cases Cited:
Hunter and New England Area Health Service v A [2009] NSWSC 761
Re JS [2014] NSWSC 302

Texts Cited:
None cited.

Category: Principal judgment
Parties:
001: Consent to Special Medical Treatment
FXB (the person)
NZL (applicant)
Representation: W Muir, Separate Representative of FXB

File Number(s): NCAT 2024/00295598
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

Background

FXB is a 30-year-old Indigenous woman and at the time of the application she was an involuntary patient detained under the Mental Health Act 2007 (NSW) at a public hospital, having been admitted to that hospital on 17 July 2024.
We were told that FXB is a single woman with no dependents who lives an itinerant life. She has an 11-year-old daughter who lives in Queensland in the care of FXB’s mother, Ms Z. It is not disputed that FXB has not seen her daughter in a number of years. We were told that FXB receives support from family and friends and couch surfs between various friends’ homes. It is reported that she has no identification, ATM card, Centrelink income or telephone number. FXB has a friend, Mr Y (full surname unknown, so we will, without intending disrespect, refer to him as “Mr Y” in these reasons for decision) with whom she occasionally stays and whom she sometimes nominates as her designated carer pursuant to s 72 of the Mental Health Act.
It is reported that FXB has a diagnosis of schizophrenia with a mood component and recurrent drug-induced psychosis. FXB’s index admission is reported to have been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading FXB

Details

AGLC: FXB [2024] NSWCATGD 14
Case: [2024] NSWCATGD 14
Decision Date: 16 August 2024

CaseChat Overview and Summary

In the case of FXB, the patient, who has a diagnosed mental illness including schizophrenia with a mood component and recurrent drug-induced psychosis, was the subject of an application for consent to undergo special medical treatment. This treatment involved the termination of her pregnancy. The application was made under Part 5 of the Guardianship Act 1987 (NSW), and the patient was an involuntary detainee under the Mental Health Act 2007 (NSW). The court had to determine whether the patient was incapable of giving consent to the proposed treatment and whether she was incapable of understanding the general nature and effect of the treatment. The court was also required to decide if the presumption of the patient's capacity to consent was rebutted.

The court found that the patient's capacity to consent was not rebutted and therefore dismissed the application. The court noted that the patient, despite her mental health condition, was able to understand the general nature and effect of the proposed treatment. It was held that the patient's understanding of the treatment was not significantly impaired by her mental illness, and she was therefore capable of giving consent. The court was not satisfied that the patient was incapable of understanding the implications of the proposed treatment, and thus the application for consent was dismissed.

No specific orders were made by the court beyond dismissing the application for consent to the medical treatment. The dismissal was based on the court's finding that the patient was capable of understanding the nature and effect of the proposed treatment and was therefore able to give consent. The court's decision was rooted in the principle that a presumption of capacity exists and was not sufficiently rebutted by the evidence presented.

Orders

Orders of the court

The application seeking consent for special medical treatment for FXB is dismissed after hearing because we were not satisfied that FXB is incapable of giving consent to the carrying out of the treatment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	FXB [2024] NSWCATGD 14
Hearing dates:	16 August 2024
Date of orders:	16 August 2024
Decision date:	16 August 2024
Jurisdiction:	Guardianship Division
Before:	B L Adamovich, Senior Member (Legal) Dr B McPhee, Senior Member (Professional) K Laurence, General Member (Community)
Decision:	The application seeking consent for special medical treatment for FXB is dismissed after hearing because we were not satisfied that FXB is incapable of giving consent to the carrying out of the treatment.
Catchwords:	CONSENT TO MEDICAL TREATMENT – application for consent to special medical treatment – termination of pregnancy – patient with schizophrenia with a mood component and recurrent drug-induced psychosis – involuntary patient detained under the Mental Health Act 2007 (NSW) – application of Part 5 of the Guardianship Act 1987 (NSW) – whether the patient is incapable of giving consent – whether the patient is incapable of understanding the general nature and effect of the proposed treatment – presumption of capacity not rebutted – application dismissed
Legislation Cited:	Abortion Law Reform Act 2019 (NSW), s 5; Sch 1 Guardianship Act 1987 (NSW), ss 33(2), 34(1); Pt 5 Guardianship Regulation 2016 (NSW), reg 9 Mental Health Act 2007 (NSW), ss 22, 72; Pt 3
Cases Cited:	Hunter and New England Area Health Service v A [2009] NSWSC 761 Re JS [2014] NSWSC 302
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	001: Consent to Special Medical Treatment FXB (the person) NZL (applicant)
Representation:	W Muir, Separate Representative of FXB
File Number(s):	NCAT 2024/00295598
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.