GNR - [2022] QCAT 430

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

GNR [2022] QCAT 430

PARTIES:

In an application about matters concerning GNR

APPLICATION NO:

GAA8598-22

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ORALLY:

28 October 2022

HEARING DATE:

28 October 2022

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski
Member Dr Stafford

ORDERS:

The tribunal consents for GNR to undergo sterilisation being endometrial ablation with laparoscopic or abdominal bilateral salpingectomy. This order remains current for a period of six months.

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

Guardianship and Administration Act 2000 (Qld), s 5, s 6, s 11(1), s 11B, s 68A, s 70

Human Rights Act 2019 (Qld), s 13, s 17, s 37

APPEARANCES & REPRESENTATION:

Adult:

Public Guardian

Applicant:

Self-represented

Current Guardians:

Self-represented

Public Guardian:

J Caldwell

Public Trustee:

No attendance

REASONS FOR DECISION

GNR is a 21-year-old woman. She has an NDIS package. She has various supports through the NDIS package, including attending a day program a couple of days a week and having an in-home carer at times, although she lives with her parents who are her primary carers, particularly her mother. GNR attended the hearing today along with her parents [names redacted] and her aunt [name redacted]. She was represented by Jane Caldwell of the Public Guardian who had been appointed under s 125 of the Guardianship and Administration Act 2000 (Qld) (Guardianship and Administration Act) to represent her views, wishes and interests. The tribunal also heard oral evidence by phone from GNR’s general practitioner, Dr South, and from two gynaecologists and obstetricians namely Dr Jamie Friebe and Dr Brooke O'Brien.
‘Sterilisation’ is defined in the Guardianship and Administration Act as health care of an adult who is, or is reasonably likely to be, fertile that is intended, or is reasonably likely, to make the adult, or ensure the adult is, permanently infertile. We are satisfied that the proposed procedure in GNR’s case meets that definition. The particular type of sterilisation sought in this case is the one mentioned in the decision. We will explain why we have come to that decision using the criteria in section 70 of the Guardianship and Administration Act.
There are some other background factors in the Act that we need to take into account: particularly some early sections in the Act such as section 6 which says that the Act seeks to strike a balance between the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision-making, on the one hand and, on the other, their right to adequate and appropriate support for decision-making. There are some general principles and health care principles in chapter 2A of the Act to which we have also had regard. They include that an adult’s inherent dignity and worth and equal and inalienable rights must be taken into account and recognised; and that all adults have the right to the same human rights and fundamental freedoms, and that should be taken into account. It is important that an adult with impaired capacity be encouraged and supported to live a life in the general community and to take part in activities enjoyed by the community, and to achieve maximum physical, social, emotional and intellectual potential. An adult’s right to participate to the greatest extent practicable in decisions affecting their lives must be recognised and taken into account. In exercising a power for a matter, the tribunal must seek the adult's views, wishes and preferences. If possible, the adult should be supported to make their own decisions. An entity such as the tribunal exercising a power must do so in a way that promotes and safeguards the adult’s rights, interests and opportunities, and in a way that is least restrictive of their rights, interests and opportunities.
Health care principles pick up the same general principles. They also provide that all adults should be offered appropriate health care without regard to capacity; and that any consent to health care must take into account principles in respect of the inherent dignity and worth of the adult and individual autonomy including freedom to make their own choices and independence of persons. In making health care decisions such as the one the tribunal has been called upon to make today, information from the health provider must be taken into account; as well as the nature of the medical condition and prognosis; the consequences for the adult if the proposed health care is not carried out; consideration of the benefits against the burdens of the proposed health care; and the effect of the proposed health care on the adult’s dignity and autonomy.
The tribunal must also, under s 68A of the Act, take into account the views of any guardian appointed for the adult.
The Human Rights Act 2019 (Qld) (‘Human Rights Act’) is also relevant, particularly section 17 which provides that a person must not be subjected to medical treatment without their full, free and informed consent, and section 37 which provides that every person has the right to access health services without discrimination. That particular right is one that in our view would be enhanced by the giving of consent because as we will go on to explain, we have found that GNR lacks the capacity to give her own consent to the proposed procedure. Her parents as guardians are not empowered to make a decision about it, so without the Tribunal's consent, GNR would not be able to access the particular health service. On the other hand, giving consent to the proposed procedure would infringe section 17 of the Human Rights Act which says that a person must not be subjected to medical treatment without their full, free and informed consent. Section 13 of the Human Rights Act does say that human rights may be limited in certain circumstances, and we consider it is appropriate to limit the human right in this case. A human right can be limited in a reasonable way if that is demonstrably justified in a free and democratic society based on human dignity, equality and freedom. We have taken into account factors such as the nature of the human right and, of course, the right not to undergo healthcare without full, free and informed consent is an important right. Particularly, the proposed procedure is one that does have significant effects because of its lifelong effect of removing a person’s fertility. But we also take into account the nature and purpose of the limitation. The other factors set out in section 13 include whether there are any less restrictive and reasonably available ways to achieve the purpose, the importance of preserving the human right, and the balance between the various factors. As we will try to explain, we consider that in this case the limitation is justified given the need for the procedure and the reasons for that.
‘Capacity’ is defined in the Guardianship and Administration Act as being able to understand the nature and effect of a decision about a matter, being able to freely and voluntarily make the decision, and being able to communicate it in some way. Capacity under the Act is presumed but the presumption can be rebutted. We also take into account section 5 of the Act which says that the capacity of an adult to make decisions may differ according to the type of decision to be made and the support available from the adult’s support network.
Doctors Friebe and South have expressed opinions about GNR’s capacity to make a decision about the proposed procedure. Dr O’Brien, although she provided a very detailed report, did not directly address capacity. But she made some other observations which in a general sense are consistent with the other doctors’ observations.
It is common ground that GNR has Prader-Willi Syndrome which is a genetic condition which she was born with. It has resulted in an intellectual disability which has been described as severe. Dr Friebe, who is the gynaecologist who had originally been planning to carry out the procedure if given approval, considers that GNR has minimal capacity to make her own health care decisions as she would be unable to comprehend the clinical factors involved. He does not consider though that GNR has a communication impairment. Against that, Professor Wales, who had been a long-term specialist for GNR during her childhood, and who provided a report in relation to an earlier proceeding in 2019, considered that GNR did have a communication impairment. He also considered that she, for other reasons as well, lacked capacity to make her own decisions about personal matters.
Dr South, who has been GNR’s long-term general practitioner, considers that because of the intellectual impairment that GNR has, she lacks capacity to make her own decisions about the proposed procedure. Dr O’Brien did not squarely address the question of capacity but she also noted the intellectual impairment, the history of special schooling that GNR had, and so on.
The other parties do not disagree with the health professionals’ opinions about capacity. We accept those opinions, and find that the presumption of capacity is rebutted in GNR’s case in relation to the matter of having a procedure that involves sterilisation.
The doctors’ reports and their oral evidence set out a lot of detail about what has led up to today, but in brief summary there was a delayed start to GNR menstruating. It started about a year ago. GNR has been extremely distressed by bleeding, and the opinion of the doctors is that she would be distressed even by light bleeding. She does have heavy and prolonged menstrual bleeding. She also has ongoing anxiety about further bleeding even when she is not actively bleeding. That has led to avoidance of her usual activities such as attendance at the day program. It has led to her wearing pads outside times when she is actively bleeding. There are also some behavioural issues associated with obsessive compulsive elements of GNR’s condition, which have created difficulties. For example, placing patches and pads is a very prolonged procedure because of GNR’s wish to get those things exactly aligned and so on. So, for these various reasons, the bleeding has been very disruptive of the quality of life of GNR and has affected those who provide support to her as well.
All of the health professionals agree that it is important to eliminate the bleeding if that is possible for the sake of GNR’s quality of life. Various other methods have been trialled or considered. They include oral contraceptives, patches, and intrauterine devices. But for various reasons, these other methods are contra-indicated: whether because they are incompatible with other medications that GNR takes; or the effect on her bone health long-term given that she has been diagnosed with osteopenia; or because of behavioural issues including her inability to tolerate procedures that others might be able to tolerate without general anaesthetic; and, importantly, GNR has respiratory issues which make surgery under general anaesthetic more risky for her than for people in the general population. This therefore has an impact on whether she can have repeat procedures over time, for example for the insertion and replacement of an intrauterine device.
Dr South, who knows GNR and the family well, describes GNR as becoming extremely distressed and having an emotional mental breakdown from the menstrual bleeding. Her reaction, according to Dr South, can be unwittingly violent and harmful to both herself and her parents.
Dr Friebe considers that endometrial ablation and tubal ligation or salpingectomy, depending which method is adopted, would be the least invasive and safest option to deal with the problem, and preferable to the more invasive and higher-risk option of hysterectomy. He considers that the procedure itself, that he was proposing, was a fairly low-risk one with serious complications occurring only very rarely. Dr O’Brien expresses a similar view about the procedure itself. She describes it as a minor operation, but she says that she focused on the risks for GNR because of what she described as a high risk airway for anaesthesia. Dr O’Brien has outlined special preparations that would need to be done and facilities that would need to be available to deal with those particular risks. Both of the gynaecologists have said that ablation by itself would not be sufficient, and that there should also be a tubal ligation or salpingectomy to eliminate any residual risk of pregnancy which would be a dangerous state of affairs for someone who has had an endometrial ablation. Dr O’Brien also thinks that a hysterectomy would be a much more major procedure, particularly for GNR because of the position that patients would be required to be placed in. That procedure would not be ideal for GNR, given her risks.
Dr Friebe was originally going to carry out the procedure. He has now withdrawn because he operates from the North West Private Hospital which he acknowledges does not have sufficient anaesthetic and intensive care facilities to accommodate GNR’s needs. So it has been agreed that Dr O’Brien instead will become the practitioner who would carry out the procedure. She has confirmed that she would accept GNR as a patient. GNR via Ms Caldwell, her representative, has indicated that she would be happy with that. GNR’s parents have also confirmed that they would be happy with Dr O’Brien taking over. So, whereas Dr O’Brien provided her report to the tribunal by way of a second opinion, she is now the proposed practitioner. So we have taken that into account. Dr O’Brien recommends the proposed procedure because of the significant distress that the bleeding is causing to GNR and to improve her quality of life.
There was also some discussion during the hearing about whether or not a Mirena intrauterine device should be inserted at the time of surgery. That was an option suggested by Dr O’Brien but there are pros and cons of that which will be further discussed between Dr O’Brien and the family. We are satisfied that we do not have to deal with whether consent should be given for that option because it is not sterilisation within the terms of the definition in the Act. That is something the parents can decide as guardians for GNR in due course.
We are required of course to take into account GNR’s wishes. They have been expressed through her representative Ms Caldwell, who says that GNR has been able to provide her views and wishes in simple terms. GNR is clear that she wants the bleeding to be stopped through having surgery. She does not indicate a wish to have a child, and she acknowledges that she would not be able to look after a child herself. GNR’s mother has made some similar comments about what the parents have discussed with GNR. Dr South has also echoed that the proposed procedure is in accordance with GNR’s wishes, so we have taken that into account.
We have also taken into account Ms Caldwell's submission that it would be in GNR’s interest for the menstrual bleeding to be stopped permanently. We have also taken into account the views of GNR’s parents as her guardians, as we are required to do. GNR’s mother has provided a particularly detailed statutory declaration about GNR’s history and the problems that have been encountered. We are satisfied that both parents as guardians for GNR, having been appointed as her guardians for all personal matters, are in favour of the procedure.
In terms of the requirements under section 70 of the Act, we are satisfied that GNR is an adult with impaired capacity for the special health matter involved – the type of sterilisation matter involved – and that GNR is an adult who has problems with menstruation, and that cessation of menstruation by sterilisation is the only practicable way of overcoming the problems. We are satisfied that the sterilisation cannot be reasonably postponed. Currently GNR is using a hormonal method of suppressing the bleeding but that is not advisable for her long-term because of the effect on her bone health. So there is that physical reason for not postponing the procedure. There are also behavioural and quality of life issues for not postponing it. We consider that it is unlikely that GNR will, in the foreseeable future, have the capacity for decision-making about sterilisation, given that she has a lifelong genetic disorder. We have also taken into account alternative forms of health care which have been discussed in detail by the doctors, of which we have mentioned some today, including other sterilisation procedures, particularly hysterectomy, which are available or are likely to become available in the foreseeable future. There has been no suggestion that there is going to be some other preferable form of sterilisation that is likely to become available in the foreseeable future. We have also, of course, taken into account the nature and extent of the short-term and long-term significant risks associated with the proposed procedure and alternative forms of health care in the way that has been outlined already.
So, for those reasons, we have decided that the appropriate decision is to give consent.