GKB - [2020] NSWCATGD 99

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GKB [2020] NSWCATGD 99
Hearing dates: 13 May 2020
Date of orders: 13 May 2020
Decision date: 13 May 2020
Jurisdiction: Guardianship Division
Before: C P Fougere, Principal Member
Dr B McPhee, Senior Member (Professional)
D R Sword, General Member (Community)
Decision:
The application seeking consent for special medical treatment for GKB is dismissed after hearing because we were not satisfied that GKB is incapable of giving consent to the carrying out of the treatment.

Catchwords:
CONSENT TO MEDICAL TREATMENT – application for consent to special medical treatment – 18-year-old woman with Fragile X syndrome – termination of pregnancy – 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
Civil and Administrative Tribunal Rules 2014 (NSW), r 27
Guardianship Act 1987 (NSW), ss 33(2), 34, 34(1); Pt 5
Guardianship Regulations 2016 (NSW), reg 9

Cases Cited:
Application of a Local Health District; Re a Patient Fay [2016] NSWSC 624
Guthrie v Spence [2009] NSWCA 369
Hunter and New England Area Health Service v A [2009] NSWSC 761
In re T (Adult: Refusal of Treatment) [1993] Fam 95
In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290
Re JS [2014] NSWSC 302
Re MB [1997] 2 FCR 514
SKX [2010] NSWGT 29
UMG [2015] NSWCATGD 54

Texts Cited:
None cited.

Category: Principal judgment
Parties:
001: Consent to Special Medical Treatment
GKB (the person)
EJG (applicant)
Representation: J Hill, separate representative for GKB

File Number(s): NCAT 2020/00140096
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

What the Tribunal decided

We dismissed the application seeking the Tribunal’s consent for GKB to undergo proposed special medical treatment on the basis that the Tribunal was not satisfied that GKB is incapable of giving consent to the carrying out of the treatment.

Background

GKB is an 18-year-old woman who lives with her family in a suburb of Sydney. She is of the Mendaeism faith and arrived in Australia with her family approximately three years ago from Iraq. GKB attends a high school. GKB also has a diagnosis of Fragile X syndrome which has resulted in intellectual disability. We were told that other members of GKB’s family, including her parents, also have this condition.
By the time of this hearing, GKB was in her tenth week of pregnancy. GKB wishes to terminate her pregnancy. The evidence before us indicated that this has been her consistently held view since her pregnancy was confirmed. She has expressed this view to a number of health…

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 GKB

Details

AGLC: GKB [2020] NSWCATGD 99
Case: [2020] NSWCATGD 99
Decision Date: 13 May 2020

CaseChat Overview and Summary

In the case of GKB, the applicant sought to obtain consent on behalf of GKB, an 18-year-old woman with Fragile X syndrome, for the termination of her pregnancy. The application was made under Part 5 of the Guardianship Act 1987 (NSW) and was heard in the Supreme Court of New South Wales. The primary issue before the court was whether GKB was incapable of giving consent to the proposed medical treatment, specifically a termination of pregnancy. This hinged on whether GKB could understand the general nature and effect of the proposed treatment.

The court examined the evidence presented regarding GKB's cognitive abilities and her understanding of the proposed treatment. It was argued that GKB's Fragile X syndrome impaired her ability to comprehend the nature and consequences of the medical procedure. However, the court found that the presumption of capacity had not been rebutted. The evidence did not sufficiently demonstrate that GKB was incapable of understanding the general nature and effect of the treatment. Therefore, the court concluded that GKB retained the capacity to give consent to the medical treatment in question.

As a result, the court dismissed the application seeking consent for the special medical treatment. The decision was made after careful consideration of the evidence and the applicable legal principles. The court found that GKB was not incapable of giving consent and that the presumption of capacity remained unrebutted. Consequently, the order of the court was that the application seeking consent for special medical treatment for GKB was dismissed.

Orders

Orders of the court

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	GKB [2020] NSWCATGD 99
Hearing dates:	13 May 2020
Date of orders:	13 May 2020
Decision date:	13 May 2020
Jurisdiction:	Guardianship Division
Before:	C P Fougere, Principal Member Dr B McPhee, Senior Member (Professional) D R Sword, General Member (Community)
Decision:	The application seeking consent for special medical treatment for GKB is dismissed after hearing because we were not satisfied that GKB is incapable of giving consent to the carrying out of the treatment.
Catchwords:	CONSENT TO MEDICAL TREATMENT – application for consent to special medical treatment – 18-year-old woman with Fragile X syndrome – termination of pregnancy – 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 Civil and Administrative Tribunal Rules 2014 (NSW), r 27 Guardianship Act 1987 (NSW), ss 33(2), 34, 34(1); Pt 5 Guardianship Regulations 2016 (NSW), reg 9
Cases Cited:	Application of a Local Health District; Re a Patient Fay [2016] NSWSC 624 Guthrie v Spence [2009] NSWCA 369 Hunter and New England Area Health Service v A [2009] NSWSC 761 In re T (Adult: Refusal of Treatment) [1993] Fam 95 In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 Re JS [2014] NSWSC 302 Re MB [1997] 2 FCR 514 SKX [2010] NSWGT 29 UMG [2015] NSWCATGD 54
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	001: Consent to Special Medical Treatment GKB (the person) EJG (applicant)
Representation:	J Hill, separate representative for GKB
File Number(s):	NCAT 2020/00140096
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.