FZC
[2018] NSWCATGD 51
•21 February 2018
|
New South Wales |
Case Name: | FZC |
Medium Neutral Citation: | [2018] NSWCATGD 51 |
Hearing Date(s): | 21 February 2018 |
Date of Orders: | 21 February 2018 |
Decision Date: | 21 February 2018 |
Jurisdiction: | Guardianship Division |
Before: | R H Booby, Senior Member (Legal) |
Decision: | The application for special medical treatment is dismissed after hearing. |
Catchwords: | CONSENT TO MEDICAL TREATMENT – application for consent to special medical treatment – endometrial ablation – patient has anaemia from heavy menstrual bleeding – patient not able to provide informed consent – intellectual disability – whether the treatment is the most appropriate form of treatment to promote health and well-being – whether treatment is necessary to save patient’s life or prevent serious damage to health – application dismissed. |
Legislation Cited: | Guardianship Act 1987 (NSW), ss 33(1)-(2), 36(1)(b), 42, 44, 45(2) |
Cases Cited: | None cited. |
Texts Cited: | None cited. |
Category: | Principal judgment |
Parties: | 001: Consent to Medical or Dental Treatment |
Representation: | Nil. |
File Number(s): | NCAT 2017/00292290 |
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
Special Medical Consent
Background
FZC is 19 years old and lives with her mother, TAC and her father, Mr Z, at northern Sydney in NSW.
On 27 September 2017 the Tribunal received an application from TAC seeking consent for endometrial ablation to be performed on FZC.
On 8 November 2017 the Tribunal adjourned the hearing on a part-heard basis to provide time for a series of blood tests to be conducted to indicate whether FZC’s iron deficiency is likely to worsen such that it would be likely to cause serious damage to her health.
The hearing
At the end of these Reasons for Decision are lists of the parties and witnesses who attended the hearing. [Appendix removed for publication.]
FZC attended the hearing but due to her disability she was not able to express a view regarding the application or the proceedings.
WHAT MUST BE PROVED?
If a person is incapable of giving informed consent to special medical treatment, then only the Tribunal may provide consent: Guardianship Act 1987 (NSW), s 36(1)(b). Such treatment is defined in s 33(1) of the Guardianship Act as including:
“any treatment that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out”
Under s 33(2) of the Guardianship Act, a person is incapable of giving consent to the carrying out of medical treatment if the person:
(1)is incapable of understanding the general nature and effect of the proposed treatment, or
(2)is incapable of indicating whether or not he or she consents or does not consent to the treatment being carried out.
The Guardianship Act requires that the Tribunal must not give consent to the carrying out of special treatment unless it is satisfied that the treatment is necessary to (a) save the patient’s life or (b) to prevent serious damage to the patient’s health: Guardianship Act, s 45(2).
The Guardianship Act imposes a further consideration on the Tribunal in s 44 of that Act. That section directs that if consent is to be given to medical or dental treatment, the Tribunal must be satisfied that it is “appropriate for the treatment to be carried out” and must have regard to the views of the patient, the person who is proposing that medical treatment be carried out on the patient and any persons responsible for the patient.
The Tribunal must also take into account matters set out in s 42 of the Guardianship Act which are:
(1)the grounds on which it is alleged that the patient is a patient to whom this Part applies,
(2)the particular condition of the patient that requires treatment,
(3)the alternative courses of treatment that are available in relation to that condition,
(4)the general nature and effect of each of those courses of treatment,
(5)the nature and degree of the significant risks (if any) associated with each of those courses of treatment, and
(6)the reasons for which it is proposed that any particular course of treatment should be carried out.
In summary, therefore, the issues for determination by the Tribunal were as follows:
(1)Is the treatment proposed by the applicant “special medical treatment”?
(2)Is FZC incapable of giving consent to the proposed special treatment?
(3)Is the treatment necessary to save FZC’s life or is the treatment necessary to prevent serious damage to FZC’s health?
(4)Is the proposed special treatment the most appropriate form of treatment for promoting and maintaining FZC’s health and wellbeing?
Is the proposed treatment ‘special treatment’?
The Tribunal was satisfied that the proposed endometrial ablation would render FZC permanently infertile and that it is special medical treatment as defined in the Guardianship Act.
Is FZC incapable of providing consent to the proposed treatment?
Section 33(2) of the Guardianship Act provides that a person is incapable of giving or withholding consent to medical or dental treatment if the person:
(1)is incapable of understanding the general nature and effect of the proposed treatment, or
(2)is incapable of indicating whether or not he or she consents or does not consent to the treatment being carried out.
In a Health Professional Report Form for Special Treatment, Dr X, a gynaecologist and surgeon, describes FZC as having a profound intellectual disability resulting from Chromosome Deletion 22Q13 – Phelan-McDermid Syndrome and as being nonverbal and unable to make any decisions for herself.
FZC attended the hearing and her presentation was consistent with her having an intellectual disability and communication impairment such that she is unable to make informed decisions about her medical treatment. We were satisfied that she is not able to consent to the treatment.
What is the particular condition of the patient that requires treatment?
In his report Dr X indicates that FZC has very heavy menstrual periods which she and her carers are not able to manage and this causes her distress.
What are the alternative options for treatment that are available?
In the application Dr X identifies the insertion of a Mirena IUD as a possible alternative treatment but notes that it would only last for five years and would require a general anaesthetic and could have hormonal side effects and cause spotting and bleeding, weight gain and depression
Why is it proposed that the treatment should be carried out?
Dr X indicates that the proposed treatment was a preferable means of addressing FZC’s situation because it is quick, relatively painless, permanent, minimally invasive, has no adverse hormonal effects and requires no follow-up.
Are there any risks associated with the proposed treatment?
In the report Dr X does not list any risks of the proposed treatment.
Is the proposed treatment the most appropriate treatment?
Taking into account the views expressed by Dr X in his report, we are satisfied that the treatment is the most appropriate treatment for addressing FZC’s heavy and difficult menstrual periods.
How will the proposed treatment promote and maintain the patient’s health and wellbeing?
Taking into account the views expressed by Dr X in his report, we are satisfied that the treatment would promote FZC’s health and wellbeing by relieving her of the stress resulting from heavy menstrual periods which she and her carers are not able to manage.
Is the proposed treatment necessary to save the patient’s life or prevent serious damage to health?
In his report Dr X notes that FZC has anaemia and that it would worsen over time if her heavy menstrual bleeding is not addressed.
At the hearing on 8 November 2017 the Tribunal spoke with Dr Y who is FZC’s GP. She said that FZC has been experiencing heavy bleeding at times of menstruation and that blood tests have indicated that she has depleted iron content. Currently the tests indicate only a slight depletion that could not be considered likely to cause serious damage to FZC’s health.
Dr Y and Mr Z said that the heaviness of FZC’s bleeding had increased over time and was now heavier than at any previous time.
Dr Y said that she has only recently been ordering blood tests for FZC and had recently prescribed iron tablets for her. The most recent test was in September 2017. She proposed regular blood tests to monitor FZC’s iron count and, as noted above, we adjourned the hearing so that the results of those blood tests would be known.
At the current hearing Ms TAC said that there have been three blood tests conducted since the previous hearing and that in Dr Y’s view they did not provide evidence that FZC’s anaemia was getting worse such that it represented a risk of serious damage to her health. She said that whilst FZC’s haemoglobin count was low that could be treated with an infusion that FZC had the previous day. She said that on that basis she had decided to consent to FZC having a Mirena IUD inserted and that arrangements had been made with Dr X to perform that procedure.
The Tribunal telephoned Dr X who expressed the view that regardless of FZC’s blood tests and the risk of anaemia, the procedure would prevent serious harm to FZC’s health because it would prevent a pregnancy which would constitute a major risk for her given her intellectual disabilities.
We carefully considered the view of Dr X but were not satisfied that the proposed procedure was one that was most appropriate or necessary to prevent FZC from becoming pregnant.
On the available evidence we were not able to be satisfied that in the absence of the proposed treatment there was a risk of worsening anaemia that posed a risk of serious harm to FZC’s health.
As we were not able to be satisfied that the proposed procedure was necessary to save the FZC’s life or to prevent serious damage to her health we were unable to consent to the procedure and dismissed the application.
**********
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
0
0
1