GI - [2023] QCAT 122 | CaseChat AU

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:
PARTIES:

GI [2023] QCAT 122

In applications about matters concerning GI

APPLICATION NO/S:

GAA12967-22; GAA996-23; GAA997-23

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

6 February 2023 (delivered ex tempore)

HEARING DATE:

6 February 2023

HEARD AT:

Brisbane

DECISION OF:

Senior Member Browne, Presiding
Member Dr Roylance

ORDERS:

1.     The Tribunal consents for GI to undergo sterilisation being a total laparoscopic hysterectomy and bilateral salpingectomy with ovarian conservation.

2.     This order remains current for a period of six (6) months.

3.     The Public Guardian is appointed as guardian for GI for the following personal matters:

(a)     Accommodation;

(b)     Health care;

(c)     Provision of services, including in relation to the National Disability Insurance Scheme;

(d)     What education or training GI undertakes.

4.     This order remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years.

5.     The Public Trustee of Queensland is appointed as administrator for GI for all financial matters.

6.     The Tribunal dispenses with the requirement for the administrator(s) to provide a financial management plan.

7.     The Tribunal directs the administrator(s) to provide accounts to the Tribunal when requested.

8.     This appointment of Public Trustee of Queensland remains current until further order of the Tribunal.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – where sterilisation procedure proposed for person with intellectual disability – whether consent should be given for procedure – where applications for the appointment of a guardian and administrator – whether order should be made

Guardianship and Administration Act 2000 (Qld), s 5, s 6, s 11B, s 68A, s 70, s 125

Human Rights Act 2019 (Qld), s 48

APPEARANCES & REPRESENTATION:

Adult:

GI

Applicants:

Dr Kathryn Green, health professional
Sue Cochran, social worker

Proposed Guardian/s:

Public Guardian

Proposed Administrator/s:

Public Trustee of Queensland

Representative:

Belinda Duncan, Public Guardian

Public Guardian:

Shellie McPhillips, Public Guardian

REASONS FOR DECISION

Senior Member Browne: The Tribunal has received an application for consent to special healthcare, sterilisation, filed on the 18^th of November 2022 by Dr Kathryn Green, and an application for the appointment of a guardian and an administrator filed on the 24^th of January 2023 by Sue Cochran, social worker. Each of the applications concern GI, a 35 year old woman who has since birth an intellectual disability. GI has inherited Cowden syndrome and has an increased risk of endometrial cancer. GI also independently has an increased risk of cancer because she may have inherited Lynch syndrome.
GI has expressed a desire to have a hysterectomy. The proposed procedure is supported by GI’s health professionals. As reflected in the report of Dr Rachel Susman, consultant clinical geneticist, dated the 30^th of June 2021, the current risk management guidelines for women with the PTEN gene mutation recommend hysterectomy after childbearing is complete. Further, as reflected in Dr David Baartz’s report who is the clinical head in gynaecology, senior gynaecologist, dated the 19^th of March 2019, due to Cowden syndrome, GI has up to a 40% risk of endometrial cancer and, due to possible Lynch syndrome, she has a 30 to 70% risk of endometrial cancer. Currently, GI’s mother has recently been diagnosed with endometrial cancer and is undergoing treatment.
A hysterectomy is special healthcare for the purpose of the Guardianship and Administration Act 2000 (Qld), referred to as ‘the Act’ and, importantly, a sterilisation, because it will make GI permanently infertile. The proposed procedure that is sterilisation will require the Tribunal’s consent if we find that GI has impaired capacity for the special health matter, as provided in s 70.[1]
[1]Guardianship and Administration Act 2000 (Qld), s 70.
In relation to the application for the appointment of a guardian and administrator, s 12 gives the tribunal the power to, by order, appoint a guardian for a personal matter or an administrator for a financial matter only if satisfied certain requirements are met, including, amongst others, that the adult has impaired capacity for the matter and there is a need for a decision in relation to the matter, and without an appointment the adult’s needs would not be adequately met or the adult’s interests will not be adequately protected.[2] Here, it is proposed that the Public Guardian be appointed as GI’s guardian and the Public Trustee of Queensland be appointed as her administrator.
[2]Ibid, s 12.
It is convenient for us to firstly address whether GI has capacity to make decisions about her personal, financial and special healthcare matters. As reflected in the general principles under the Act, capacity is something that GI is presumed to have. Capacity is defined under schedule 4 of the Act as understanding the nature and effect of decisions about the matter, freely and voluntarily making decisions about the matter, and communicating the decisions in some way.
We accept the unchallenged medical evidence contained in various reports, such as the report prepared by Dr Alfred Ngini dated the 8^th of September 2022, who refers to autism, intellectual impairment, epilepsy and Cowden syndrome. Dr Ngini has known GI for approximately nine years, states that GI can make basic decisions about her personal healthcare, has no capacity to make decisions about her financial matters and no capacity to make decisions about complex personal matters. Dr Ngini supports the proposed hysterectomy on the basis that it is appropriate to prevent cancer, which the patient is reported by him to be at a very high risk because of Cowden syndrome and possible inherited Lynch syndrome.
GI is reported to have only a basic understanding of the proposed sterilisation due to her intellectual impairment and reduced receptive and expressive communication. Similar views about GI’s decision-making capacity are expressed by Sue Cochran, assistant director of social work. In her report dated the 21^st of October 2022, Ms Cochran states that GI is aware of the current decision to be made and she has stated that she does want a hysterectomy. GI is reported to not be able to fully comprehend the ramifications of a major surgical decision such as a hysterectomy. GI is also reported not to have full insight or understanding of the complexities of living independently and to manage her finances without assistance.
Sterilisation, resulting in permanent infertility, is a complex health issue. It requires a consideration of clinical factors including post-surgery recovery and monitoring. It is open for us to find on the medical evidence, including the reports of Dr Ngini and Ms Cochran, that GI does not have capacity to make complex decisions about the proposed hysterectomy that is a special healthcare matter. We are also satisfied that GI does not have capacity to make complex decisions about her personal and financial matters. The presumption of capacity for the purposes of s 70, concerning the application for consent for the sterilisation, and s 12, concerning the applications for the appointment of a guardian and an administrator, is rebutted.
Turning, now, to the application for consent to special healthcare and the requirements under s 70 that include a consideration of whether the sterilisation is medically necessary, as well as other factors, such as the sterilisation cannot reasonably be postponed, and a consideration of whether alternative forms of healthcare, including other sterilisation procedures, are available or likely to be available in the foreseeable future, and the nature and extent of short-term or long‑term significant risks associated with the proposed procedure, and available alternative forms of healthcare, including other sterilisation procedures.
Dr Green, obstetrician and gynaecologist, reports on the 15^th of September 2022 that GI and her mother have been diagnosed with Cowden syndrome with PTEN mutation, which carries an elevated risk of several cancers including endometrial cancer. GI also has a 50% risk of having Lynch syndrome, which is hereditary, and is also associated with an elevated risk of endometrial cancer. GI cannot be tested to determine definitely if she carries a Lynch mutation.
Dr Green reports that GI has consulted with a number of specialists about the hysterectomy. The procedure proposed is a total laparoscopic hysterotomy and bilateral salpingectomy with ovarian conservation. Hysterectomy is proposed as a precautionary measure to eliminate the risk of developing cancer. There are alternatives meaning other procedures or screenings for cancer that may be used to monitor and review GI’s healthcare issues and possible cancer. We accept that these procedures are invasive and, as reported by Dr Green, not medically recommended.
The alternative procedures involve a yearly procedure with sedation that in itself has risks and is not a process recommended by Australian medical guidelines. Balancing that against a hysterectomy, that may not eliminate entirely the risk of developing endometrial cancer, we are satisfied that the proposed hysterectomy is the only effective procedure.
As reported by Dr Graeme Jackson, director of obstetrics and gynaecology, the risks with a hysterectomy, as opposed to yearly invasive screening, would be cumulatively less over time. The invasive screening, in our view, would not be beneficial to GI’s emotional wellbeing because it is highly personal in nature, and the frequency in which it would have to be undertaken, and lack of clear benefit, as discussed above, and the need for annual general anaesthetic.
As provided in chapter 2A, s 11(b) of the Act, GI’s inherent dignity and worth and equal and inalienable rights must be recognised and taken into account. GI has the same human rights and freedoms regardless of her particular capacity. These rights must be recognised and considered.
GI is supported in the decision about sterilisation by the Public Guardian, who is appointed under s 125(1) of the Act as her representative to represent GI’s views, wishes and interests. We accept the evidence contained in the Public Guardian’s report received on the 19^th of January 2023. We find that GI’s understanding of the proposed sterilisation procedure appears quite limited.
As reported by the Public Guardian, GI has experienced past problems with menstruation, experienced anaemia and currently has a Mirena for control of menstruation. GI does not have a partner and is reported to have difficulty understanding relationships and sexual health. It is also reported that GI’s mother advised the current cancer surveillance regime for GI stops her from living a normal life, as she has a revolving door of doctor’s appointments and surveillance tests for bowel cancer, thyroid cancer, breast cancer and endometrial cancer.
GI is also supported by her healthcare professionals and, until recently, her mother, who has been acting as GI’s statutory health attorney for health matters. GI’s mother has expressed a desire to no longer be involved in GI’s decisions about her healthcare matters, including the proposed hysterectomy.
There are many provisions in the Guardianship and Administration Act 2000 (Qld) that are important and relevant to the applications before us today and, although we mention only specific sections, all of the provisions have been considered. GI’s decision should be restricted and interfered with to the least possible extent as required by s 5. GI’s autonomy and decision-making and her rights to adequate and appropriate support for decision-making is protected by s 6 and must be considered in the context of the relevant matter to achieve an appropriate balance.
Relevant to the present matters, amongst other things, is the question of whether the sterilisation is medically necessary and whether the discretion to appoint substituted decision-makers for the purposes of s 12 should be exercised. As we have said, there are many matters to be considered for the purposes of s 70, concerning the application for consent to the sterilisation, and s 12, concerning the applications for the appointment of a guardian and administrator, and other provisions of the Act.
GI is aware that the surgery has been recommended but clearly has a limited understanding of the reasons why it is recommended. We have taken into account GI’s views and wishes and preferences. For the purposes of the application to consent to sterilisation, we have considered whether the sterilisation cannot be reasonably postponed, as required by s 70. We have also considered the protocol for special medical procedures for sterilisation, as required by QCAT Practice Direction Number 8 of 2010.
GI has an increased risk of developing endometrial cancer. Screening for cancer is necessary and cannot be postponed. Other procedures available for the purpose of screening for cancer are invasive and require sedation. Even if GI was to undergo the alternative yearly procedures with sedation, such sedation in itself carries risks. The procedures are not good for GI’s emotional wellbeing because she worries – because she will be required to undergo ongoing, invasive procedures.
On balance, a hysterectomy is the only known effective procedure to eliminate the risk of developing cancer. There is therefore no reason to postpone the hysterectomy. We are satisfied that the sterilisation cannot be reasonably postponed. It is unlikely that GI will have the capacity to give consent to the sterilisation in the foreseeable future. We are satisfied and find that the hysterectomy is necessary and, on balance, more effective than invasive procedures such as to eliminate cancer because it will improve GI’s quality of life, such as reducing the need for ongoing, invasive procedures and any worry about contracting cancer. We are satisfied the procedure cannot be reasonably postponed because GI has an increased risk of cancer. It is unlikely that GI will have capacity to make complex decisions about her healthcare in the near future.
We have also considered the short and long-term risks associated with the proposed hysterectomy including, amongst other things, pain, bleeding, injection, clotting and wound healing. On balance, we are satisfied that such risks can be safely and comfortably managed through regular healthcare monitoring and review and through prescribed medication for any pain or infection.
We also consider the least restrictive period for approval for the hysterectomy, based upon the evidence before us, is six months. This is sufficient time for GI to make arrangements for the procedure and to put in place any necessary supports in her ongoing recovery. The Tribunal consents for GI to undergo sterilisation, being total laparoscopic hysterectomy and bilateral salpingectomy with ovarian conservation. This order remains current for a period of six months.
Turning now to the applications for the appointment of a guardian and administrator, we are satisfied, as required by s 12, that decisions need to be made about some of GI’s personal matters, including accommodation, provision of service including the NDIS, and what education or training GI undertakes, and healthcare matters.
GI’s mother is reported to no longer wish to live with her daughter, GI. Decisions will need to be made about accommodation and provision of services during this period of transition. GI will need to find a suitable place to live with support, including post-surgery support and assistance with her NDIS plan and finding suitable employment. Decisions will need to be made about GI’s more complex healthcare matters as well as her financial matters. Such decisions will include preparation of a budget to manage her income in the form of a disability support pension. Decisions about GI’s financial matters will also include payment of expenses such as accommodation, personal expenses, possible utilities, and chemist accounts.
We find that without the appointment of a guardian and an administrator, GI’s needs will not be adequately met nor her interests adequately protected. We are also satisfied that the Public Guardian is suitable as a guardian of last resort and that the Public Trustee of Queensland is suitable and appropriate to act as GI’s administrator. The Public Guardian and the Public Trustee of Queensland are well placed to apply the general principles under the Act.
As we have indicated, GI’s mother did not attend the hearing today. For reasons other than the specifics of the special healthcare matter, GI’s mother does not want to be involved in the hearing today. She is aware of the applications, but for personal reasons is unable to provide ongoing personal support as has previously been the case. There is no evidence before us that another family member is available to take on the role of a guardian or administrator. GI supports the appointment of independent decision-makers to assist her in making decisions about some of her personal matters and her financial matters.
A review of the appointment of the Public Guardian in two years for some of GI’s personal matters, including decisions about her accommodation, healthcare, provision of service including in relation to the NDIS, and what education or training GI undertakes is, based on the evidence before us, the least restrictive. A review of the appointment in two years will, in our view, be sufficient time for GI to be settled and supported in her new accommodation. And it may be that in a review in two years that decisions about some of her personal matters are no longer required.
We are satisfied that the appointment of the Public Trustee of Queensland until further order is also appropriate because we have found that decisions will need to be made about all of GI’s financial matters, including preparation and management of a budget to pay and to continue to pay ongoing living and other expenses.
We have also considered the relevant human rights, as set out in the Human Rights Act 2019 (Qld), as required by s 48. We must interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights. GI’s rights to recognition as a person before the law entitled to equal protection without discrimination, freedom of movement and privacy, protection from inhuman or degrading treatment, may all be engaged and limited by the making of these orders. Taking into account our findings about the criteria set out in the Guardianship and Administration Act 2000 (Qld), we are satisfied that the limits imposed by our orders are reasonable and justified in accordance with s 13 of the Human Rights Act 2019 (Qld). The orders made are the least restrictive based on the information before us.
The orders today: in relation to the application for consent to special healthcare, sterilisation, the Tribunal consents for GI to undergo sterilisation, being a total laparoscopic and bilateral salpingectomy with ovarian conservation. This order remains current for a period of six months.
In relation to the application for the appointment of a guardian, the Public Guardian is appointed as a guardian for GI to make decisions about the following personal matters: accommodation, healthcare, provision of services including in relation to the National Disability Insurance Scheme and what education or training GI undertakes. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two years.
In relation to the application for the appointment of an administrator, the Tribunal appoints the Public Trustee of Queensland as an administrator for GI to make decisions about all financial matters. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. The appointment of the Public Trustee of Queensland remains current until further order of the Tribunal. The Tribunal directs the administrator to provide accounts to the Tribunal when requested.

The following documents were considered by the Tribunal to be credible, relevant and significant to an issue in the proceeding, in accordance with s 103 of the Act: the document ‘M1’, report of Dr Alfred Ngini, document ‘M2’, report of Dr Kathryn Green, document ‘M3’, consent for the procedure, ‘M4’, report of Sue Cochran, document ‘M5’, report of Christopher Taylor, document ‘M6’ and ‘M7’, report of Dr Baartz, the ‘M8’ document, Dr Rachel Susman’s report, document ‘M9’, Dr Graeme Jackson’s report, the ‘H1’, application, and ‘H2’, submissions, the ‘H3’, letter, and the ’H11’ Public Guardian’s report.