HGL (No 2)
[2011] QCATA 259
•19 September 2011
| CITATION: | HGL (No 2) [2011] QCATA 259 |
| RE: | HGL (Applicant/Appellant) |
| APPLICATION NUMBER: | APL297-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 12 September 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon J B Thomas, Member |
| DELIVERED ON: | 19 September 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | [1] Appeal allowed. [2] Consent is granted for the sterilisation of HGL. |
| CATCHWORDS: | Guardianship – sterilisation of adult with menstrual problems Guardianship and Administration Act 2000, s 70 |
APPEARANCES and REPRESENTATION:
Ms J Glover, as Representative of HGL; and HD and HA (parents).
REASONS FOR DECISION
This appeal concerns HGL who turned 18 in January 2011. She has profound disabilities and limited life expectancy.
Her severe congenital medical conditions include extensive cerebral deficits, cerebral palsy, epilepsy, significant gastro-oesophageal reflux and dysmotility, renal disease, severe scoliosis and osteopenia (reduced bone mass). Among other artificial aids she has a gastrostomy, fundoplication (for treatment of reflux oesophagitis) and a colostomy.
She requires full time care 24 hours a day, and is confined to a wheelchair.
She was conceived with the help of IVF and born at 34 weeks of gestation by caesarean section following evidence of intrauterine growth retardation.
Her mother has provided care since her birth. She and HGL’s stepfather are her main care providers.
HGL is severely intellectually disabled. She also suffers recurrent urinary tract infections and respiratory tract illnesses. She has a diminished life expectancy possibly limited to a few years.
Her development was retarded and she did not commence menstruation until she was 17 years old (in 2010). This produced heavy bleeding and caused her extreme distress. This has been partially alleviated with hormone medication, but it has undesirable side affects. One of these is an increase in the risk of thrombosis.
After the onset of the menstrual problems it was recommended by her treating doctors, Dr Armstrong and Dr Yared (a gynaecologist) that HGL have a hysterectomy.
There is no doubt that HGL lacks the capacity to make a decision concerning an operation of the kind that has been suggested.
[10] After receiving the above medical advice, her parents applied to QCAT for consent to administer special health care, namely the suggested operation. This was made under chapter 5A of the Guardianship and Administration Act 2000 (“the Act”) because HGL was at that time under 18.
[11] Subsequently Ms J Glover (a qualified Solicitor) was appointed as child representative to act in HGL’s interests, and on 4 March 2011, after HGL turned 18, her appointment was continued. She will be referred to as “HGL’s representative”.
[12] The criteria for conducting a sterilisation operation in circumstances such as the present are set out in section 70 of the Act. Relevantly, the Tribunal may consent to such an operation on an adult female if she “has problems with menstruation and cessation of menstruation by sterilisation is the only practicable way of overcoming the problems”. It is also necessary that the sterilisation cannot reasonably be postponed, and the person is unlikely, in the foreseeable future, to have capacity for decisions about sterilisation.
[13] The application for consent was heard by a two-Member QCAT Tribunal over an extended period (23 March to 7 June 2011), in the course of which further evidence was received and taken into account. Eventually the Tribunal, on 11 July 2011, refused to grant the necessary consent for the operation.
[14] This is an appeal against that decision. The appeal came on for hearing before the President (Wilson J) and the Hon J B Thomas on 12 September 2011. Apparently medical evidence was gathered by QCAT's registry, but not all of it was made available to HGL's representative. We were satisfied that through inadvertence some of the evidence upon which the Tribunal based its decision (in particular Dr Taylor) was not seen or received by HGL’s representative until after the decision was published.
[15] We were satisfied that the rules of natural justice had not been observed, and granted leave to appeal. I was then appointed under section 102 of the Act and section 166 of the Queensland Civil and Administrative Tribunal Act 2009 to determine the matter.
[16] There is a considerable body of medical evidence that has been received in this matter. It would seem that the medical opinions tend to vary with the overall medical condition of HGL from time to time, which of course fluctuates considerably. At the time of grant of leave to appeal, her representative was granted leave to obtain and present further medical evidence as to HGL’s condition, and as to the desirability of the proposed procedure.
[17] This has resulted in a report from Dr Stephen Baines, whose specialties include reproductive medicine, and gynaecological surgery.
[18] Daily, indeed hourly, care for HGL has been provided over many years by her mother and stepfather. They minister to all of her needs and have a full understanding of her pains, her responses, her wants and her wellbeing. They are aware of the distress which the onset of menstrual problems has occasioned. They have also observed her reaction to the drug therapy which has so far been used in an attempt to overcome the problem. They are strongly of the view that the sterilisation operation which would remove the cause of the problems is the best solution.
[19] It is not necessary to set out the medical reports and opinions at length. As already noted, to some extent they vary according to the varying health of HGL. I have in particular considered the views of Dr David Wood, Dr Kathleen Armstrong, Dr Lyn Yared, Dr Katie Taylor, Dr Margaret-Anne Harris and Dr Jeffrey Forgan-Smith.
[20] Additionally I have the benefit of an up to date report from Dr Baines, who has seen HGL and conferred with the parents, and has supplied a report which addresses the problems which had led to differences of opinion among the other medical experts.
[21] One of the main grounds of appeal is as follows:
The Tribunal erred in fact or in law in failing to place proper weight on the evidence of Dr Woods, a specialist paediatrician, and Dr Armstrong, HGL’s treating General Practitioner, that although the current treatment Primolut N is managing HGL’S menstruation, there are risks that the medication will over time fail to achieve this effect and that HGL’s current impairments mean that she will not be a candidate for surgery indefinitely.
[22] It is fair to say that Doctors Woods and Armstrong have had a closer and longer association with HGL than the other medical experts, and that their views are entitled to particular respect.
[23] Even without the most recent report from Dr Baines, I am of the view that the weight of the evidence supports the view expressed in the above ground of appeal. In particular the important shortcomings and problems in the continuation of Primolut N therapy, and the time for having the more effective remedy of hysterectomy is running out.
[24] In my view HGL’s parents have a better understanding of her feelings, pain and needs than anyone else in the world, and that the views of her GP and paediatrician who have dealt with her needs over a lengthy period are entitled to great weight.
[25] Some of the medical views upon which the Tribunal reached its decision were from experts who had not seen the patient or her parents. Their hypothetical opinions are of course valuable, but in the context of the present case, not necessarily as persuasive as those closer to the patient and her problems.
[26] In his report of 14 September 2011 Dr Baines addressed the possible means of alleviating or removing the problems and distress which HGL’s periods are causing. She is currently on Primolut N medication, which was supported by Doctors Forgan-Smith and Yared as a practical way of overcoming her period problems. However Dr Yared had formerly (report 24 December 2010) been strongly of the view that the sterilisation/hysterectomy was medically necessary, having regard to behavioural, hygienic and care factors. Surprisingly he changed his opinion during oral evidence, and accepted that the Primolut N medication had fewer risks than a hysterectomy.
[27] Dr Baines however has pointed out that the current Primolut N regime is far from ideal. The long term use of Primolut N appears to have increased the number of epileptic seizures, and of breakthrough bleeding. The drug is a progesterone and “is not without side effects”.
[28] Dr Baines proceeded to discuss other possible options for trying to reduce or eliminate the problem. He rejected oral contraceptives because of estrogen problems whose affects would inter alia make her epilepsy harder to control. He similarly rejected Depo Provera and the use of an intrauterine device. He finally compared the options of Primolut N medication and total abdominal hysterectomy. He concluded that the hysterectomy was preferable, noting that it would relieve HGL of the period problem and the associated side affects, and that in the long run it would be far easier to manage. He conceded there are risks with having a hysterectomy and that these are considerably increased because of HGL’s physical condition, but remained of the view that a total abdominal hysterectomy was the preferred remedy.
[29] Even before taking into account the evidence of Dr Baines, I think that the weight of the evidence favoured this conclusion. Overall I consider that the evidence supports the granting of consent for the performance of the desired operation. The long-term continuation of Primolut N medication with its associated side-effects is not a "practicable" alternative. The only truly practicable solution is the operation.
[30] HGL’s health is currently (for her) reasonable. There is a window of opportunity during which the operation might be performed.
[31] In the terms of section 70 of the Act I am satisfied that:
(a) Cessation of menstruation by sterilisation is the only practicable way of overcoming the problems;
(b) The sterilisation can not reasonably be postponed and;
(c) HGL is unlikely, in the foreseeable future, to have capacity for decisions about sterilisation.
Orders
[32] The appeal is allowed.
[33] The order of 11 July 2011 dismissing the application for consent is set aside, and in its place it is ordered that consent is granted for the sterilisation of HGL.
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