In an application about matters concerning CM - [2022] QCAT 263

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

PARTIES:

In an application about matters concerning CM [2022] QCAT 263

APPLICATION NO/S:

GAA1257-22

MATTER TYPE:

Guardianship and administration matters

DELIVERED ON:

30 May 2022

HEARING DATE:

30 May 2022

HEARD AT:

Brisbane

DECISION OF:

Member Endicott, Member Dr Roylance, Member Burson

ORDERS:

1.     The Tribunal consents to CM undergoing sterilisation by a total laparoscopic hysterectomy with bilateral salpingectomy with preservation of ovaries.

2.     In the event that this procedure cannot be completed, then the Tribunal consents to conversion to laparotomy to complete the hysterectomy.

3.     This consent remains current for six months.

4.     The Tribunal prohibits the publication of the contents of all documents filed and produced to the Tribunal and by the Tribunal (with the exception of these de-identified reasons) to any person other than the active parties in this application and other than the Public Advocate.

5.     This order does not prohibit the distribution of this order to any treating clinician or hospital.

APPEARANCES & REPRESENTATION:

Child:

CM, not appearing

Applicant/s:

MS represented by A Lofaro, solicitor of Minter Ellison

Active Party:
Active Party:

CR, father of CM, not appearing

Dr A, Gynaecologist of CM

Active Party:

Dr P, Paediatrician of CM

Active Party:

Dr N, Paediatric Physiatrist of CM

Active Party:

T Melville, Legal Aid Queensland, appointed representative of CM

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – STERILISATION OF A CHILD WITH AN IMPAIRMENT – where an application made seeking consent to sterilisation of a child – where the child’s parents support a hysterectomy procedure prior to commencement of menarche – where the child has a phobia of blood – where the child has history of self-harming and aggressive behaviour at the sight of blood – where treating and independent experts support sterilisation – where the child’s appointed representative supports sterilisation – whether sterilisation is in the best interest of the child

Guardianship and Administration Act 2000 (Qld) ss 80C(1), 80C(2), 80D(1)(a), (b), (c) and (d), 80D(3)(a), (b) and (c), 80F(1), 80F(2), 80L(1)

REASONS FOR DECISION

Medically rendering a person permanently infertile without that person’s consent constitutes an egregious breach of that person’s human rights. Carrying out the same medical procedure with informed and lawful consent is generally considered not to be a breach of that person’s human rights. This matter involves a 10-year-old female child with severe autism and an intellectual impairment who cannot lawfully give her consent to a medical procedure which will result in her sterilisation and who is very likely to commence puberty and menstruation in the coming weeks or months. CM’s family identify as Aboriginal.
Her mother seeks consent from the Tribunal to the sterilisation of this child under Chapter 5A of the Guardianship and Administration Act 2000 (Qld) (“Guardianship Act”), specifically s 80C(1). When the requirements of that Chapter are satisfied, the Tribunal has the power to give consent to what CM’s mother seeks for her daughter: a total laparoscopic hysterectomy with bilateral salpingectomy with preservation of the ovaries. That consent can only be given under s 80C(2) of the Guardianship Act if the Tribunal is satisfied that sterilisation of CM is in the best interests of the child.
The Tribunal has appointed a person to separately represent CM before the Tribunal in this application as required by s 80L(1) of the Guardianship Act. In addition, unlike other applications made to the Tribunal under the Guardianship Act relating to adults, the active parties to this application include the parents of CM, doctors who are treating CM and her appointed representative.
The Tribunal panel deciding this application is constituted differently from most other panels hearing applications made under the Guardianship Act. The panel is required by s 80F(1) to be 3 Members and must, under s 80F(2), have knowledge and experience of persons with impaired capacity. One Member must be an Australian lawyer and another Member must be a paediatrician. The Tribunal in this application is constituted by an Australian lawyer, a paediatrician and by a second Australian lawyer who is a Murrawarri woman.
Evidence was given to the Tribunal in written reports from CM’s treating doctors who attended the hearing to give oral evidence and who all supported the application. Reports from other medical or allied medical practitioners were also relied on to support the application. The appointed separate representative of CM engaged the services of GT, a social worker, to obtain information about the views and wishes of CM. The Tribunal took into account the report of GT and the submissions of the separate representative of CM.

Background information

The mother of CM made this application based on s 80D(1)(a) of the Guardianship Act that sterilisation of CM is medically necessary and /or that cessation of menstruation is the only practicable way of overcoming problems with menstruation. CM is 10 years old with a weight of 95 kilograms and is 159 centimetres tall. CM is doubly incontinent and relies on her mother for most activities of daily living. CM’s mother stated that CM cannot understand what would happen when her menstrual periods commence. CM has a phobia of blood which her mother believes is associated with an incident when CM ran into a large glass window and broke the glass causing significant injuries to her leg which required multiple operations and hospitalisations over 18 months. After that traumatic incident, CM becomes emotionally distressed whenever she sees blood on her body.
CM’s mother stated that CM would not be able to cope if she were to have a menstrual period. She stated that CM would not be able to understand why she was bleeding and would be focused on trying to “fix” it. CM’s phobia of blood results in emotional dysregulation and CM acts aggressively towards herself and others when emotionally dysregulated.
CM’s mother asserts that CM, should she experience a menstrual period, would try to find the source of the bleeding and would try to stop the bleeding in a way that could cause injury to herself. CM’s mother stated that CM’s behaviour would escalate out of control, which has in the past resulted in CM punching holes in walls, pulling out her hair, banging her head against hard surfaces (when she had a wobbly tooth), and running forcibly into her carers. This harmful behaviour can be prolonged over an extensive period of time.
CM’s mother states that CM has strict routines about showering and only tolerates showering at a certain time of the day. Should CM need extra showers to be cleaned up after any menstrual accident, she would act aggressively, bashing her head on the floor of the shower, pulling her hair, and physically struggling to escape the shower. CM’s mother believes it would be very distressing to clean up and escalate the risk of harm for CM and her carers. CM’s mother asserted that she would have to use chemical restraint to sedate CM for the days of her period each month, which would amount to at least 12 weeks a year for many years until her menopause.
CM’s mother stated her belief that CM cannot be subjected to the inconsistencies of menstruation and the flow of blood. She has the belief that CM will harm herself due to her phobia of blood. She is of the belief that CM’s life is at grave risk if the hysterectomy does not proceed.
CM’s mother submitted that by undergoing a sterilisation procedure, CM would be facing only one medical operation. She will undergo a short period of sedation when recovering from surgery and she would have a definitive outcome of not experiencing menstrual bleeding with the anticipated emotional trauma. CM’s mother stated that she was not prepared to gamble with her daughter’s life by having CM trying out alternative methods of medical intervention that cannot guarantee that menstrual bleeding will permanently cease.
Dr P is a paediatrician who has been treating CM since April 2016. Dr P stated that CM has been diagnosed with severe autism and an intellectual impairment. In the first years of Dr P treating CM, she was nonverbal, but she has developed some very limited language over the past few years. Dr P stated that he would see CM every two to three months due to her severe tantrum behaviour and trialled various medication options to manage her challenging behaviour which, as she grew older and physically larger, needed two carers to keep her safe. Dr P stated that CM is the size of an adult and that she is strong and mobile but with a mental age of about 3 years of age.
Dr P stated that the medication that CM was administered for her behaviour can accelerate puberty. He described CM as first developing physical signs of precocious puberty when she was aged about 7 years old. She was referred to an endocrinologist who prescribed medication to prevent CM from fully maturing and having her periods. Dr P stated that in 2020, CM was at Tanner Stage 2/3 in her pubertal treatment and without injections to suppress her maturity, she would most likely have progressed to full menarche in 2021. Dr P stated that when he last saw CM (about two weeks before the hearing), she had presented with further maturation and was likely at Tanner Stage 4 and that the commencement of her periods was imminent.
Dr P expressed an opinion that CM will be almost impossible to manage when she has her periods. He referred to the incident when CM was admitted to hospital after throwing herself through a pane of glass. During that time, CM kept on destroying the wound and stitches and it took many months to heal. She needed to be nursing specialled 24 hours a day and medical staff were unable to stop her from hurting herself. Dr P supports consent being given to sterilisation.
Dr N is an adolescent psychiatrist who was consulted by CM’s mother in 2020 and who has been a treating clinician for CM since that time. CM was referred to Dr N to see whether he could add strategies to the management of her behaviour and emotional dysregulation. Dr N stated that the combination of autism and an intellectual impairment was a challenge in managing CM’s behaviours. He expressed an opinion that CM was not likely to show an improvement in her behaviour for a long time.
Dr N stated that CM satisfies the criteria for the diagnosis of Post-Traumatic Stress Disorder. This diagnosis was said to arise out of the incident when CM threw herself through a pane of glass causing significant injury. The effect of this incident was compounded by the lengthy recovery due to complications described by Dr P.
Dr N stated that CM experiences intense or prolonged psychological distress and physiological reactions at exposure to internal or external cues that symbolise or resemble an aspect of this traumatic event. Dr N stated that CM has marked alterations in arousal and reactivity associated with this traumatic event which is clearly demonstrated in CM’s severely disruptive behaviour responding to a trigger. The disturbed behaviour causes clinically significant distress or impairment in social or other important areas of functioning.
Dr N observed that the most significant trigger for CM is the presence of her own blood. The source of the blood will not change the degree of distress.
Dr N expressed an opinion that there is a serious risk of danger to CM’s psychological and physical health due to the Post-Traumatic trigger of menstruation. He acknowledges that the reports from other medical experts show that the feasibility of less permanent means of management has been thoroughly investigated and found to be inadequate for CM’s particular situation. He stated that it would be extremely rare to be able to justify a permanent solution to menstruation by an invasive medical procedure in such a young child as CM. However, he expressed a belief that CM is one of these rare exceptions. Dr N supports consent being given for CM to undergo hysterectomy.
Dr A is the treating gynaecologist of CM since 2020. Dr A stated that during her consultations, CM was in a wheelchair for most of the time and was unable to communicate with the doctor. She stated that CM’s behaviour was erratic and while CM was calm for most of the consultation, Dr A had witnessed several episodes of emotional lability and had observed that it was not always easy to calm CM.
Dr A stated that CM went through premature adrenarche aged 8, signalling menarche was approaching. Given CM’s reaction to blood on her body, and her history of self-harm, Dr A noted that CM’s mother had serious concerns about the effect of menstruation on CM. CM’s mother had sought medical help for her daughter and Lucrin injections were used to suppress the onset of menstruation. As these injections can only be used until age 12 maximum, a longer-term plan was sought from Dr A. Due to significant weight gain while CM was taking Lucrin, this medication has been ceased.
Dr A referred to CM’s most serious self-harm incident when CM put her leg through a glass window and seriously lacerated her leg. CM had emergency surgery but was very distressed post operatively and mobilised prematurely on the leg and re-opened the wound. Due to ongoing complications with the wound, CM required several operations in the following months. This incident triggered Post Traumatic Stress Disorder and has contributed significantly to CM’s phobia of blood.
Dr A stated that CM’s scratching and gouging behaviours continue. Dr A stated that seeing blood can trigger CM’s panic and anxiety. She will often smear the blood around the walls of the room she is in. The presence of a bloody wound has triggered recent glass-breaking incidents by CM, including her breaking several windows in the house and car.
Dr A stated that CM has started to explore genital touching with multiple episodes throughout the day when CM has had her fingers in her vulva. CM’s mother had told Dr A of a concern that if menstruation occurs, CM will extend her gouging and scratching behaviours to her vulva and vagina.
Dr A supports CM undergoing a hysterectomy as medically necessary. Without this procedure, Dr A expresses an opinion that CM would be a risk to herself once she starts menstruating. Dr A states that there is no other option that can guarantee a no-menstrual-blood outcome.
SJ is a social worker who is involved in the care of CM. She states that CM is an extremely complex child with high and ongoing support needs. From 2017, CM displayed progress in developing language and communication skills as well as some self-care skills. The incidence and severity of her behaviours had begun to diminish. However, SJ states that any adverse incident causes regression in all of these gains. CM was struck by a van in September 2021 and her skills development regressed significantly. SJ states that CM continues to display heightened and physical behaviours that can be a risk to herself and others.
FM is CM’s treating psychologist. She has been involved in treating CM since 2018 and comes to CM’s house three or four days a week to provide support to CM and education and support to her mother. Initially, FM was providing support about CM’s behaviours but currently, FM’s involvement is also supporting and developing responses to the self-harm presented by CM. FM monitors CM’s behavioural changes, and looks at the intensity, frequency and duration of CM’s behaviours in order to train and support the carers in safely responding to the behaviours.
She states that CM has a fixation with blood and that blood is a trigger for CM’s behaviours. She asserts that were CM to experience a period, there is a risk that she will believe that she has a cut inside her vagina and will attempt to put things inside her vagina to stop the bleeding. As CM re-opens wounds on her body by scratching at the wounds which delays healing by weeks, she is likely to continue to focus on her vagina after her period has ended, increasing the risk of harm to herself.
FM states that seven potential days of bleeding from her vagina would likely be a trauma that becomes a fixation that would lead to requiring the use of restrictive practices. It would be unlikely that the use of restrictive practices to ensure the safety of CM for each period cycle for the rest of her life would be approved. FM expressed an opinion that it would not be in CM’s best interests to be chemically restrained every month for seven days for the rest of her life. FM supported the application seeking approval for CM to undergo a hysterectomy.

Legal Framework – ss 80D

Sterilisation is medically necessary and/or the only practicable way of overcoming problems with menstruation -– s 80D(1)(a)

The legal framework in Chapter 5A of the Guardianship Act underlying the giving of consent to a procedure which will result in sterilisation of a child must be based on a finding by the Tribunal that the proposed sterilisation is in the best interests of the child. S 80D of the Guardianship Act sets out the criteria to be satisfied for such a finding to be made. These reasons will now address those criteria.
The first criteria required the Tribunal to identify one or more of the medical reasons stated in s 80D(1)(a) as the basis for sterilisation. The evidence in support of the application has been set out in the background information contained in paragraphs earlier in these reasons. It was submitted by CM’s mother that sterilisation is medically necessary to achieve full menstrual suppression. Given CM’s phobia of blood, it was submitted that the onset of menstruation will present problems involving serious risks of self-harming behaviour and sterilisation is the only practicable way of overcoming these problems.
The Tribunal accepts that all of the evidence presented to the Tribunal supports the submissions that permanent prevention of the onset of menstruation for CM is a necessity. That evidence is expressed cogently and consistently by each of CM’s long-term treating clinicians and by CM’s mother. Evidence was also given by an independent gynaecologist, Dr W, who consulted with CM’s mother and who was told of the problems experienced by CM over the sight of blood. In a report given to the Tribunal, Dr W stated her opinion that, due to the complex nature of CM’s issues, a hysterectomy was the best option for CM’s safety, quality of life and care.
However, the legal test is not satisfied by merely reaching a conclusion that necessity requires the permanent suppression of the onset of menstruation. The Tribunal must also conclude that sterilisation is either medically necessary or is the only practicable way of overcoming the problems CM has with commencing menstruation. The Tribunal will deal with that issue later in these reasons.

Child with impairment- s 80D(1)(b) and (c)

CM is a minor and as such, at law, she is under a legal disability and cannot give her consent or make her own decisions about a variety of complex matters. Some children can however give consent to complex matters if they are found to satisfy a legal concept of having Gillick competence. The evidence given to the Tribunal about CM’s capacity to understand the proposed medical procedure, the risks involved and the consequences of undergoing a hysterectomy must be considered to conclude whether she does not now, nor when she turns 18, have the capacity to give her own consent to sterilisation.
According to the evidence from Dr P, CM will never have capacity to consent to sterilisation. He gave evidence that at best, CM’s final mental age will be 6 to 7 years of age. Her adaptive behaviour skills will be even lower. Dr P stated that CM has been diagnosed with Level 3 Autism Spectrum Disorder and has an associated severe intellectual impairment. He stated that CM has limited communication and difficulties with her reciprocal communication. He stated that CM takes a very long time to learn new skills. She is achieving learning outcomes consistent with a child aged 3 to 4 years.

CM’s general medical practitioner, Dr PH, gave evidence that CM has been diagnosed with autism, an intellectual impairment and Attention Deficit Hyperactivity Disorder. She stated that CM has poor impulse control with aggressive outbursts.
An assessment of CM’s cognitive and adaptive functioning was carried out by FM, psychologist. CM’s adaptive functioning was assessed as in <1 percentile, as was her functioning in each of her communication domain, her daily living skills and her socialisation skills.
Unlike in applications made under the Guardianship Act about adults, there is no statutory definition of capacity for decision-making by a child. Chapter 5A applications are about children with an impairment which is defined in s 80A as a cognitive, intellectual, neurological or psychiatric impairment. There is adequate and cogent evidence from CM’s treating medical and allied medical practitioners set out in these reasons on which the Tribunal can and does conclude that CM has an intellectual impairment and is accordingly a child with an impairment in terms of Chapter 5A.
Relying on the evidence of Dr P and FM, the Tribunal concludes that CM’s impairment results in a substantial reduction of her capacity for communication, social interaction and learning. Her assessed functioning in those areas is in <1 percentile and as such, the Tribunal concludes CM’s impairment places her in an extremely low range of functioning.
The Tribunal accepts the opinion of Dr P that CM’s final level of functioning and understanding will not exceed the functioning of a 6- to 7-year-old. The Tribunal concludes that CM’s impairment is permanent and that when CM turns 18, she will be no more able to demonstrate an understanding of the nature of the decision whether to undergo a sterilisation procedure than she can at the present time. At 18, she will not be able to demonstrate an understanding of the range of medical options to manage any menstrual problems, nor will she be able to demonstrate an understanding of the consequences of choosing a sterilisation option over other short-term or long-term options for management of her menstrual problems. The Tribunal concludes that when CM turns 18, she will have impaired capacity for giving her consent to sterilisation.

Whether sterilisation cannot be reasonably postponed -– s 80D(1)(d)

The mother of CM, MS, has applied for consent to sterilisation at this time because of her belief that sterilisation cannot reasonably be postponed to after a time when CM is an adult. MS asserts that CM will not be able to cope were she to have a period and that she would have to be chemically restrained. MS believes that CM would act aggressively towards her support workers and would self-harm. Dr P gave similar evidence and stated that CM would be almost impossible to manage if she had her periods. He described the likely situation as “the nightmare of management that periods would represent” and stated that this should be avoided if at all possible.
Dr A states that the sterilisation procedure cannot be reasonably postponed beyond the age of 12 at which age Lucrin, a drug which can suppress menstruation, can no longer be administered. That drug has already been used and now discontinued for CM due to concerns about her excessive weight gain. Dr A states that the expected outcome of a hysterectomy conducted at the current time is to meet the purpose of CM never having to experience a menstrual period.
The evidence of Dr PH, CM’s general medical practitioner, on 21 March 2022 is that CM is at a point where her periods will commence within six months i.e., around September 2022. FM, CM’s psychologist, states that if CM were to experience a period, her behaviour would escalate to harm of herself and others. Dr N, CM’s psychiatrist, states that there is a serious risk of danger to CM’s psychological and physical health due to the Post Traumatic Stress Disorder trigger of menstruation. While Dr N states that it would be extremely rare for an invasive procedure of hysterectomy to be justified in a young child, CM’s case is one of these rare exceptions.
The Tribunal accepts the evidence from CM’s treating doctors that she is on the cusp of starting her menstrual periods. The suppression of her periods by medication has been ceased due to unacceptable side effects and will not be reinstated. The evidence presented by her treating doctors is cogent and despite being only 10 years of age, the Tribunal is satisfied that her developmental factors are such that life is about to change for CM. The Tribunal concludes that if CM were to experience even one menstrual period, her behaviour is likely to escalate and result in self-harm and harm to those persons around her. The evidence satisfies the Tribunal that if consent is given to hysterectomy for CM, the sterilisation must be conducted in the very near future and cannot reasonably be postponed.

Is sterilisation in CM’s best interests?

Respecting CM’s dignity and privacy -– s 80D(3)(a)

The question to address now is whether consent should be given to hysterectomy for CM as being in her best interests. S 80D(2) of the Guardianship Act states that sterilisation is not in the best interests of a child if sterilisation is for eugenic reasons or to remove the risk of pregnancy resulting from sexual abuse. The evidence presented to the Tribunal did not involve issues of eugenics or of avoiding pregnancy arising from sexual abuse. CM is a part of a loving and supportive family whose focus is squarely on ensuring CM has the best quality of life and is kept safe from the harming consequences of her phobia of blood. The issues in s 80D(2) are not present in the life of CM, have not been raised in any way on the evidence and therefore do not form part of the Tribunal’s reasonings in this application.
S 80D(3) informs the Tribunal what it must do when considering whether sterilisation is in a child’s best interests.
The Tribunal must ensure that CM is treated in a way that respects her dignity and privacy. CM has not taken an active part in this application, nor has she been required to appear to give evidence. Her privacy is protected in this application by non-disclosure of her identity in these reasons. However, her views and wishes about the proposed hysterectomy are an essential part of the information on which the Tribunal has based its decision. Her appointed separate representative has been able to relay CM’s views and wishes to the Tribunal to the extent that CM is able to express them.
The Tribunal acknowledges that issues integral to CM’s bodily integrity and to her dignity as a person are prime considerations in the Tribunal’s deliberations. CM’s fertility is part of her identity as a female person. Removal of the physiological structures that promote CM’s fertility should not be condoned unless that is an outcome consistent with her dignity. There is ample evidence that hysterectomy at age 10 would be consistent with the maintenance of CM’s dignity.
CM’s mother states that CM would engage in escalated behaviours were she ever to experience a menstrual period. That behaviour is likely to take the form of smearing blood on herself and elsewhere, refusal to shower to remove the menstrual blood on her body, aggressive behaviour towards her carers trying to promote her hygiene when CM has a period, causing injury to her vagina and engaging in other aggressive outbursts that would be difficult to manage even with two carers supporting CM.
Similar evidence, as outlined in paragraphs set out earlier in these reasons, was given by Dr N, Dr A, SJ and FM. They were all of the opinion that CM would escalate into self-harming behaviour if she were to see blood associated with menstrual periods. The Tribunal interpreted their expert evidence as acknowledging that the loss of control and the emotional and psychological trauma that the sight of blood would trigger in CM would result in harm and loss of her dignity.
The Tribunal finds that CM would likely be subjected to sedation on the days when she would encounter menstrual blood. Sedation as a response to keep CM safe from her harmful behaviour would be considered a form of chemical restraint. When sedated on those days, CM would be unable to engage in her usual and favoured activities. Maintaining routine at home and in the community is central to reducing CM’s escalated behaviours arising from her autism. Her quality of life would deteriorate due to hygiene and emotional issues.
The Tribunal finds that CM’s likely destructive and harmful behaviour would be triggered by the sight of menstrual bleeding. The action that her carers will have to take to keep CM safe would significantly and adversely impact her dignity. The concept of dignity in this case is aligned with keeping CM safe and with providing her with an optimal quality of life that she can enjoy.
The Tribunal is satisfied that should consent be given for CM to undergo sterilisation by hysterectomy, such an outcome will prevent CM’s harmful behaviour and distress being triggered by the sight of menstrual bleeding and would be an outcome consistent with maintaining her dignity.

Views and wishes of CM -– s 80D(3)(b)(i)

The separate representative of CM has presented information as to CM’s views and wishes. A report from GT, a social worker, was provided to the Tribunal during the hearing. GT interviewed CM’s mother and father at their home where CM also resides. He also observed CM at home with her carers. The report of GT was comprehensive, clearly expressed and a significantly valuable part of the evidence in this application. The Tribunal thanks GT for his efforts and for the production of his report at short notice. The following paragraphs include information from his report.
GT did not attempt to engage directly with CM or to ask her any questions about the proposed medical procedure due to CM’s behavioural history and her diagnoses of profound intellectual impairment, level 3 Autism Spectrum Disorder and Post-Traumatic Stress Disorder. He noted that CM’s presentation and observed behaviours at her home were analogous to the range of diagnoses set out in the reports of her treating clinicians. GT concluded that it would be inappropriate to directly interview CM and the only reasonable way to report on CM’s views and wishes would involve conducting assessment interviews with her mother and father.
GT reported that CM’s mother and father are both accurately attuned to CM’s behavioural patterns and her state of mind. He reported that CM’s parents are clearly prepared to do whatever is necessary to provide a stable and predictable environment for CM, to improve her overall quality of life, and to work towards every opportunity to provide CM with a sense of both dignity and consensual engagement into CM’s daily routines.
GT reported that CM’s parents work together to focus on what CM requires at this present stage of her development. They are attempting to predict CM’s evolving future needs. They are also attempting to anticipate how the combined impact of CM’s intellectual impairment, Autism Spectrum Disorder, Post-Traumatic Stress Disorder and her associated challenging behaviours may extend to the development of a very real risk of self-harming behaviours triggered by the inevitable onset of puberty and regular menstruation.
GT stated an opinion that there is a risk that if CM is permitted to advance developmentally to the point of commencing any level of menstruation, that outcome would likely compound the documented pattern of maladaptive coping behaviours, making it even more difficult for CM’s parents to independently contract professional specialist services and practitioners to provide future support and assessments at their family home. GT considered that the impact of such a development would negatively impact on CM’s emotional and psychological stability.
GT reported on the importance of taking every reasonable step to provide children with stability and security during childhood to meet the community’s commitment to uphold the fundamental rights of children and young people. When a community provides a safe and secure environment for children, they can transition to adulthood with a much greater opportunity to live adult lives free from prejudicial histories of childhood trauma and abuse.
GT recognised that despite the QCAT application being primarily concerned with seeking consent for an extremely invasive medical procedure on a minor with a profound impairment that will result in her permanent and irreversible sterilisation, the application is also very much about ensuring CM’s physical and psychological stability over the entire span of her life.
GT reported that CM’s level of intellectual impairment and Autism Spectrum Disorder precludes CM from forming any views and wishes about the application for consent for sterilisation. However, CM has an ability to perceive fluctuations of emotional tension within her home environment, particularly from her mother, with whom CM has an extremely close bond. If sterilisation is not permitted, GT anticipates that CM’s home environment would be subjected to increased tension directly related to her parents’ distress at having to adapt to the consequences of CM not having a hysterectomy. GT stated that the importance and consequences of the intimate level of psychological and emotional attachment between CM and her mother cannot be overestimated. He stated that what the Tribunal does for one will have profound and lasting consequences on the other.
GT reported that CM’s perception and experience of her world is generally limited to her relationships with her family and her carers. CM has an extremely limited capacity to self-regulate her emotions and behaviours and she relies on her parents and carers to assist her to co-regulate when she becomes overwhelmed and emotionally distressed. Considering CM’s history of self-harming behaviours when distressed, it is important that her parents and carers can successfully co-regulate her distress. CM is unlikely to ever demonstrate any significant progression towards self-regulation. CM’s parents will have to watch CM physically mature into a young woman while she remains at the developmental level of a young child. CM is likely to always rely on full-time care of others to ensure the basic necessities of life and safety.
GT reported that from a cognitive and developmental perspective, CM will not be aware that she has undergone a sterilisation procedure as she does not have the intellectual capacity to comprehend the processes involved in human reproduction or how this relates to her own physical body. She will be aware that she is not in the familiar home environment, and she will be aware of a level of emotional and physical distress associated with the hysterectomy and an extended hospital admission during the perioperative period.
GT reported that the impact of sterilisation for CM would mean that her parents, treating clinicians and carers would be in a much better position to focus on actively working with CM to develop whatever latent, natural developmental capacity is achievable over the next few years. The alternative to sterilisation would be the need to invest significant resources in time, energy and access to CM’s limited NDIS support package finances in an effort to manage her extremely challenging and potentially self-harming behaviours if CM was permitted to proceed to full menarche with all the attendant risks.
GT expressed an opinion that if CM experiences a menstrual period, she will not be able to comprehend the source of the blood and will likely focus on her vagina in an effort to stop the bleeding and will be at an increased risk of causing harm to herself. He noted that there are medical alternatives to hysterectomy but taking the expert medical advice into account, he considered that each of the non-permanent options will either result in CM needing to be chemically sedated for extended periods of time or being subjected to multiple invasive medical procedures of variable benefit over the course of several decades.
His conclusions were in these terms:
The current application is primarily concerned with seeking approval for a highly invasive medical procedure that will essentially take away the right of a profoundly impaired young girl’s future ability to retain the functional and healthy reproductive system with which she was born. However, the application, if approved, seeks to sustain an arguably greater right – that of living a life encompassing the opportunity to progress safely from childhood to adolescence and then into the long natural span of her adult years unimpeded by the risk of experiencing an unnecessary and entirely avoidable level of debilitating psychological and emotional trauma associated with the identified risk of CM being permitted to progress towards menstruation.
I am of the opinion that the application sought is appropriate and desirable for the ongoing health and well-being of the child and that there is no less intrusive option that will bring about her suitable protection.
The Tribunal finds the arguments and comments in this report to be compelling when considering what is in the best interests of CM in relation to this application.

Views of the parents, health providers and child representative -– s 80D(3)(b)(ii)

Both CM’s mother and her father gave evidence that they supported the Tribunal giving consent to sterilisation. CM’s mother, the applicant in this application, has been a tireless advocate for her daughter over the years. Her words are also compelling:
These are the cold hard facts for CM and to keep her safe. This is a calculated controlled risk, (with) a Mirena we have no guarantee as explained to me by Dr (endocrinologist) and Dr A. I am not willing to gamble with my daughter’s life and neither should anyone else. This has been the hardest decision I have ever made. We the adults in CM’s life need to make the hard decisions to protect and care for her. Because we love her. Please understand no mother ever wants to ever make a decision like this. I have because I need to, and I will never let CM down.
All of CM’s treating medical or allied health practitioners who have contributed to the information on which CM’s mother has relied to apply for consent from this Tribunal have given evidence that they support CM undergoing a sterilisation procedure by way of hysterectomy. Their evidence is set out in the earlier paragraphs of these reasons.
The appointed separate representative for CM endorsed the contents and conclusions of the report by GT. Ms Melville informed the Tribunal that she had no evidence to present that contradicted the conclusions in that report. She supported consent being given to sterilisation of CM.
The Tribunal was provided with a copy of a report arising from a meeting held by the Centre for Children’s Health Ethics and Law at the Children’s Hospital on 11 December 2021. The Clinical Ethics Consultation Service at this meeting discussed CM’s case and whether the option of hysterectomy for CM promoted her best interests when compared to the possible alternatives. The group met with CM’s clinicians who wanted to consider the proposed procedure in terms of the principles of medical ethics. It was acknowledged that the risks of menses to CM’s health and wellbeing was significant and of particular concern to her mother.
The meeting considered that interventions such as psychological, psychiatric, medical and developmental support are embedded in CM’s care and the clinicians felt that it was unlikely that CM would respond to enhanced education or learning with respect to the impact of menstruation. The alternative, non-irreversible means of menstrual management were reviewed and their shortcomings relative to the goal of avoiding vaginal bleeding were acknowledged. The group recognised that the uterus represents femininity and fertility to many women and the presence of menses can be significant for adolescents from a developmental and social perspective. It was also recognised that the uterus is essential to a woman’s ability to carry a pregnancy and apart from achieving parenthood by using invitro fertilisation and surrogacy, hysterectomy is a sterilising procedure.

The potential losses or harms described in the preceding paragraph were considered in view of the cognitive, functional and adaptive impairment present for CM. It was considered unlikely that CM will develop a comprehension of the role of the uterus, periods and fertility and what they represent that would be sufficient for her to experience the potential harms associated with the loss of these aspects of her life as a young woman. The avoidance of the anticipated distress and secondary harms associated with menstruation would present the primary benefit of hysterectomy. The meeting acknowledged the importance of forums such as provided by this Centre to discuss and clarify thought processes for the clinicians of CM and to increase the clinicians’ confidence that they were optimally advocating for their patient.

Wellbeing of the child and alternative forms of health care -– s 80D(3)(c)

These reasons have set out the basis on which it is argued that the wellbeing of CM can only be achieved by preventing the onset of menstruation and by ensuring that CM does not experience menstrual bleeding into the future.
The Tribunal has considered whether there are alternative forms of health care that could avoid CM experiencing her first menstrual period and ongoing menstrual bleeding. In her report dated 14 October 2021, Dr A addressed what alternative options are available to manage menstruation.
Dr A stated that she would usually suggest as menstrual management the insertion of a Mirena IUD (intrauterine device) under general anaesthetic for a young woman with an intellectual impairment. She stated that the insertion of a Mirena device would require CM having to have at least one menstrual period to allow the uterus to come to a full size to accommodate the Mirena device. After the insertion, Dr A stated that there can be three to six months of irregular bleeding. The Mirena lasts for five years and so CM would require a general anaesthetic for 10 times throughout her life for repeated insertions of the Mirena. Dr A stated that this alternative would expose CM repeatedly to the risks of general anaesthetic as well as visits to hospitals which can trigger behaviour by CM.
Dr A noted that CM’s mother had concerns about CM experiencing even one menstrual period. She stated that CM’s mother had concerns about CM experiencing bleeding both prior to and then after the insertion of a Mirena. This alternative was considered inadequate to ensure the avoidance of menstrual bleeding for CM.
Dr A considered the use of endometrial ablation which requires CM to have had at least one period before the procedure. Dr A stated that endometrial ablation has an unpredictable pattern in young women and that medical literature suggests that this procedure does not have as good success when used in women under the age of 40. This alternative was considered inadequate to ensure the avoidance of menstrual bleeding for CM.
Dr A considered long-term menstrual suppression by hormonal contraception as an alternative for CM. Depo Provera injections can be given every three months, but Dr A stated that this alternative is not favoured due to an unpredictable bleeding pattern associated with this treatment. In addition, when used in the long term in such a young person as CM, there are risks of reduced bone density and development of osteoporosis. This alternative was considered inadequate to ensure the avoidance of menstrual bleeding for CM.
Dr A considered the use of Implanon rod, implanted every three years. Dr A stated that this alternative was not favoured due to an unpredictable bleeding pattern associated with its use as well as giving rise to a risk that CM may rip the implanted rod out of her arm. This alternative was considered inadequate to ensure the avoidance of menstrual bleeding for CM.
Dr A considered CM taking the combined oral contraceptive pill. This alternative was not favoured by Dr A due to an unpredictable bleeding pattern as well as the risks that oestrogen containing contraceptives have on a person in the obese weight range. This alternative requires daily compliance but will also require CM having two to four periods each year. This alternative was considered inadequate to ensure the avoidance of menstrual bleeding for CM.
In a subsequent report dated 10 April 2022, Dr A examined why she considered the risk of CM having even one period is so great that all other alternative forms of health care and less invasive options are inadequate to manage menstruation and are contrary to CM’s best interests. Dr A acknowledged that the insertion of a Mirena device is a much lower risk procedure with an immediate recovery time. However, this method would require one initial menstrual period to allow the uterus to come to full size. It may also involve several weeks of on-off bleeding after insertion, perhaps daily bleeding.
Dr A stated that while the Mirena device is usually very effective in achieving amenorrhoea or no periods, with a 90% success rate by 12 months, there is no guarantee that CM would be period free following the insertion of a Mirena device. CM’s mother had told Dr A that CM would need to be sedated on the day of the procedure as well as on any subsequent bleeding days. On a positive side, Dr A stated that CM may have learned better coping strategies by the time the Mirena device would need to be replaced at the five-year mark after insertion and may not need more sedation. Dr A stated that after the first replacement time, it is unlikely there would be any bleeding occurring at any subsequent Mirena changes. Dr A expressed a comment that CM may have learnt how to better deal with her phobia of blood by then.
Dr A stated that normally the difficulties of one period and the possibility of initial spotting that a Mirena involves would definitely be preferable to a major procedure like hysterectomy. Dr A, however, stated that CM is not a normal case and that the logic set out in the preceding paragraph and sentence is questionable. Dr A expressed a concern that were CM to see menstrual blood, she could hurl herself through a window or in front of a car due to her blood phobia as CM has done in the past.
Dr A gave an insight into how difficult it would be to manage CM through any episode when she is distressed by the sight of blood. Dr A stated that when she first met CM in 2020, the child was only eight years of age but the doctor felt physically threatened by CM’s physical size and her presence and by her unpredictable behaviour. Dr A stated that since 2020, CM has grown and could easily overpower the doctor physically. She stated that any person having to deal with a distressed or angry CM would have a near impossible task, especially if having to deal with CM on a daily basis as does CM’s mother. Dr A stated that it would be physically impossible to restrain CM, when she is reacting to the sight of blood, with one person alone.
Dr A concluded in her report that she understood in this very extreme situation why hysterectomy could be in CM’s best interests.
Although none of the alternatives to sterilisation by hysterectomy have been trialled on CM, the Tribunal accepts the evidence of Dr A that none of the alternatives, insertion of a Mirena device, endometrial ablation, use of Depo Provera, insertion of an Implanon rod or the use of a combined oral contraceptive pill, would be adequate to ensure the avoidance of menstrual bleeding in this child with a blood phobia and with a propensity to self-harm and aggressive outbursts over the sight of blood.
In this unusual case, the use of hysterectomy for menstrual management is sought even before the child experiences her first menstrual period. The provision in s 80D(3)(c)(ii) of the Guardianship Act is set out in wording that presumes that periods have commenced and that non-permanent forms of menstrual management have been trialled and failed.
The Tribunal finds in CM’s case that, even though none of these alternative methods have actually been trialled, the evidence from Dr A does prove to the satisfaction of the Tribunal that those methods would be inadequate to effectively and safely manage the problems associated with CM’s potential menstrual bleeds. None of these alternative methods will cause total prevention of bleeding nor even likely total cessation of bleeding after CM’s first period has been experienced by her.
Dr A’s evidence did not disclose that further alternative forms of health care are presently available or are likely to become available in the foreseeable future. Neither the independent gynaecologist nor any other expert medical witness presented evidence of the availability of any other forms of health care likely to adequately and permanently prevent menstruation for CM.

Short-term and long-term risks associated with proposed sterilisation – s 80D(3)(c)(iv)

The last aspects that the Tribunal must consider are the nature and extent of short-term or long-term significant risks associated with the proposed sterilisation and with the alternative forms of health care. In addition to the usual risks present in any surgery, CM’s physical and emotional health disorders are relevant as to whether those disorders will significantly increase the risks inherent in the proposed surgical procedure.
CM has been diagnosed with a long list of disorders: Autism Spectrum Disorder Level 3, Obsessive Compulsive Disorder, Post Traumatic Stress Disorder, severe Intellectual Disability, Attention Deficit Hyperactivity Disorder, Oppositional Defiance Disorder, Phelan McDermid deletion, Precocious Puberty, Obesity with a BMI of 32.5, Sensory Processing Disorder, Epilepsy, extreme Phobia of blood and any medical procedures, and Severe Disruptive Behaviours.
The proposed procedure for the hysterectomy has been described by Dr A as a total laparoscopic hysterectomy, bilateral salpingectomy, with preservation of ovaries. The procedure involves 3 x 0.5cm and 1 x 1cm incision on the skin of the abdomen. The uterus and Fallopian tubes are detached and removed through the vagina, after which the top of the vagina is sutured with dissolvable suture material. The skin cuts are closed with dissolvable sutures and skin glue. The procedure takes approximately 120 minutes.
Dr A stated that as CM has never been sexually active and is young, it is possible that her vagina will be too narrow to permit the exit of the detached womb. If that is the case, Dr A may need to extend one of the abdominal incisions to 4cm diameter to permit removal of the womb via the abdomen. Dr A stated that there is a small risk of converting the laparoscopic procedure to an open abdominal procedure (laparotomy) to complete the hysterectomy if it cannot be completed laparoscopically.
Dr A stated that CM would require a three-to-four-night stay in the Queensland Children’s Hospital where CM can receive paediatric care in the perioperative period. Dr A stated that CM may need to have some sedatives administered to her in the first few days post operatively. Given CM’s gouging behaviours to skin wounds, Dr A stated that sedative medication may need to continue for three to four weeks post operatively to stop CM picking at her laparoscopy wounds. Continued sedation for this post operative period involves an increased risk of CM developing venous thrombo-embolism as she will not be mobilising freely while sedated.
Dr A stated that she would advise CM to have some gentle movement for the first week with a gradual return to normal physical activity over the subsequent five weeks and an anticipated full return to normal function at six weeks.
Dr A outlined the risks of this procedure as being low. The short-term risks were described as infection, bleeding, a need for blood transfusion, venous thrombo-embolism and injury to the bladder, bowel or ureters. Dr A stated that these usual surgical risks are increased by CM’s overweight BMI, but the risks can be managed by the surgical team.
Dr A stated that the post operative risks will need to be addressed by a post operative plan. CM’s mother intends to arrange for a private paediatrician to attend on CM while she is in hospital, who will co-ordinate the post operative care of CM. Overlaid the usual care needs will be additional special care needs reflecting the unique circumstances of CM’s case. Sedation and additional nursing support would be required to reduce the risk of self-harm and careful consideration will be given to the optimum time to discharge CM back to her home. The post operative plan would seek to balance the benefits of consistent care inherent in a longer hospital admission against the benefits to CM of returning quickly to her familiar home environment and carers. Dr A explained that the risks to CM of surgery and the risks anticipated in the immediate recovery period can be adequately managed by her care and medical team.
Dr A described the long-term risks of sterilisation by hysterectomy as adhesion formation, prolapse of the vagina and scar complications. As the purpose of the procedure is for CM to never experience a menstrual period, Dr A stated that the uterus is removed to eliminate menses completely. The Fallopian tubes will be removed as they are not needed once the uterus is removed and the presence of the tubes after hysterectomy is associated with an increased risk of ovarian cancer. Dr A stated that the ovaries are left in to allow CM to have her normal reproductive hormones, necessary for cardiovascular, bone and mental health.
The Tribunal has taken into account the risks, both short-term and long-term, of sterilisation for CM. Despite her very young age for undergoing hysterectomy, the Tribunal is satisfied that the risks are manageable and are adequately planned for by her clinicians. Given the totality of the evidence that CM’s wellbeing and interests will only be achieved by CM undergoing a hysterectomy, the Tribunal concludes that risks of sterilisation are outweighed by the benefits of the procedure to CM.
The Tribunal has also taken into account the evidence of the risks associated with non-permanent available forms of health care for CM. Dr A described the insertion of a Mirena device as the obvious alternative to hysterectomy. She described a much lower risk from the procedure with an immediate recovery time. However, CM would have to have at least one menstrual period before the insertion of a Mirena device and post insertion bleeding or spotting is likely to occur. Due to the extreme reaction CM has displayed to blood, CM would have to be sedated to reduce her behaviour triggered by the sight of menstrual blood and to ensure that she does not engage in self-harm or in aggressive behaviour towards other people. CM’s emotional distress and her harmful behaviour negates this alternative as an adequate alternative to permanent prevention of menstruation by sterilisation.

Conclusion

Chapter 5A of the Guardianship Act puts into a statutory framework the principles that are found in the general law to determine whether consent should be given to medical treatment intended to have the effect of rendering a child infertile. The welfare of the child must be the paramount consideration. Case law developed specific considerations that must be satisfied before consent to sterilisation could be validly given.
For the Tribunal’s purposes, the factors in Chapter 5A have been satisfied in this case. These reasons have addressed all of the requirements of the statutory framework and have analysed the evidence presented to reach a clear and unequivocal conclusion. It is in the best interests of CM to undergo sterilisation by hysterectomy and the Tribunal will give consent for sterilisation to occur.
The orders made by the Tribunal expand on the wording of the consent sought in the application to consent not only to a laparoscopic procedure but also to consent to a laparotomy in the event that the hysterectomy cannot be completed laparoscopically. It would not be in the best interests of CM for the surgery to be delayed or put at risk if the treating surgeon cannot remove the uterus in the manner originally planned.
The Tribunal’s practice when giving consent to sterilisation is to limit the time period in which the consent remains current. This ensures that the procedure is carried out expeditiously and only when the factors supporting the consent are operative. The Tribunal considered that six months would be an appropriate time for the procedure to take place in view of the need for immediate steps to be taken to ensure the wellbeing of CM.
After a short discussion at the end of the hearing, the Tribunal appreciated that non-publication orders should be made to protect the privacy of CM. Information that would tend to identify the child cannot be published in accordance with processes in QCAT when children are involved in applications and hearings. However, this case is a rare exercise of discretion of the Tribunal under the child sterilisation jurisdiction of the Tribunal and it is not in the interests of CM that persons unrelated to the application can access the file or the evidence given during the hearing itself.
However, it is important in the interests of justice that the deliberations of the Tribunal are open to scrutiny in a sensitive and responsible manner. For that reason, the Tribunal will publish its reasons to the active parties but not generally on its website unless a further order for publication in this de-identified form is made.