HAN

[2024] QCAT 84

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

HAN [2024] QCAT 84

PARTIES:

In an application about matters concerning HAN

APPLICATION NO/S:

GAA4014-23
GAA14983-23

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

21 February 2024

HEARING DATE:

14 February 2024

HEARD AT:

Brisbane

DECISION OF:

Member Goodman
Member Pinkerton

ORDERS:

1.     The application for consent to special health care – sterilisation is dismissed.

2.     The application for appointment of a Guardian is to be listed for hearing before the member who has part-heard the application.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – STERILISATION OF AN ADULT – where an application made seeking consent to sterilisation of an adult – where medical procedure will result in permanent infertility but is not sterilisation – where consent of Tribunal not required

Guardianship and Administration Act 2000 (Qld), s 70, Schedule 2

REASONS FOR DECISION

1. HAN is a 37 year old woman who is diagnosed by her general practitioner with severe autism and severe mental sub-normality. She is non-verbal and relies entirely on others to ensure that her needs are met and her interests are protected. She has no capacity for decision making.

2. HAN attended the hearing with her parents and a support worker. A doctor who is a part of her treating team attended by telephone. A representative of the Office of the Public Guardian, appointed by the Tribunal to represent HAN’s views, wishes and interests, also attended the hearing.

3. In 2021, HAN was diagnosed with breast cancer and decisions were made by her parents, advised by HAN’s treating team, to undertake a course of treatment. This involved a mastectomy and chemotherapy, followed by long term medication. She is currently prescribed medication to supress the production of estrogen, a hormone that is known to stimulate breast cancer cell growth.

4. Unfortunately, HAN has experienced some side effects from the medication. It is proposed by her parents and her treating team that she undergoes a procedure to remove her ovaries, which will permanently prevent the production of estrogen. It will also render her permanently infertile.

5. In these circumstances, an application was brought to the Tribunal for consent to sterilisation.

6. Sterilisation is described as a “special health care” matter in the Guardianship and Administration Act 2000 (Qld). Consent for special health care may be given by the Tribunal for adults with impaired decision making. Guardians are not able to give consent to sterilisation or special health care matters.

7. The preliminary issue is whether the proposed procedure is “sterilisation”.

8. Sterilisation is defined in Schedule 2 of the Act.[1] It does not include “health care primarily to treat organic malfunction or disease of the adult.”[2]

   [1]Guardianship and Administration Act 2000 (Qld), s 9, Schedule 2.

   [2]Ibid.

9. “Health care primarily to treat organic malfunction or disease of the adult” is in turn defined as “health care without which an organic malfunction or disease of the adult is likely to cause serious or irreversible damage to the adult’s physical health.”[3]

   [3]Ibid, s 11, Schedule 2.

10. The medical evidence is that:

    (a)Cancer is not currently detected in HAN.  However, it is likely that microscopic residual traces of disease remain in her body. The disease is more likely to become active in the presence of estrogen. The suppression of estrogen production is, therefore, part of the treatment of the disease.

    (b)The medication (and the alternate proposed medical procedure) is part of HAN’s clinical care and treatment. It is a part of the treatment regimen for the primary cancer that has been diagnosed in HAN.

11. The Tribunal is satisfied that without the ongoing treatment, HAN’s disease is likely to cause serious damage to her physical health.

12. Her treating team have recommended the suppression of estrogen production to treat HAN’s cancer. That is health care primarily to treat the disease. The way in which that outcome is achieved (pharmaceutical or surgical) is a matter for her statutory health attorneys to determine in consultation and on the advice of HAN’s treating team. The treatment is not “sterilisation” and so does not require the Tribunal’s consent.

13. The application for consent to special health care is dismissed.

14. The application for the appointment of a guardian is part heard before another member and will be finalised by that member.