Janet (a pseudonym)

[2024] NSWCATGD 28

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Janet (a pseudonym) [2024] NSWCATGD 28

Hearing dates:

3 December 2024

Date of orders:

3 December 2024

Decision date:

03 December 2024

Jurisdiction:

Guardianship Division

Before:

R H Booby, Principal Member
Dr B McPhee, Senior Member (Professional)
M Watson, General Member (Community)

Decision:

The Tribunal consents to the following special medical treatment being provided to Janet subject to the opinion of the respiratory team that the anaesthetic risk is acceptable:

laparotomy, drainage and excision of left pelvic abscess including oophorectomy with bilateral salpingectomy and, if necessary, hysterectomy and insertion of drainage tubes and any necessary treatment that would normally be provided in association with or directly consequent upon the above treatment.

This consent is effective for a period of three month(s) from the date of this order.

Catchwords:

CONSENT TO MEDICAL TREATMENT – application for laparotomy, hysterectomy and bilateral salpingo-oophorectomy – 38-year-old woman with possible ovarian or gynecological malignancy – cause uncertain without proposed treatment – proposed treatment is special medical treatment – person incapable of giving consent to treatment – condition poses serious risk to person’s health – person has pulmonary condition which increases risk of death or serious harm – alternative treatment available but potentially ineffective – alternative strategies have been trialled without success – proposed treatment recommended by treatment team and NSW Health Guidelines – consent to treatment provided – effective for a period of three months.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 33(1)-(2), 36(1)(b), 42, 44, 45(2)

Cases Cited:

None cited.

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

004: Consent to Special Medical Treatment

Janet (the person)
Renae (applicant)
Andrew (carer)
Belinda (carer)

Representation:

Nil.

File Number(s):

NCAT 2021/00242615

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

Background

1. Janet is 38 years old and prior to hospitalization had lived for a short time in supported accommodation in regional NSW where she was supported by support workers. She previously lived with her parents, Belinda and Andrew. At the time of the hearing, she was a patient at a public hospital.

2. The Tribunal received an application from Renae, a Fellow in Gynecological Oncology, seeking urgent consent for treatment for Janet. The proposed treatment was laparotomy, hysterectomy and bilateral salpingo-oophorectomy in the context of a possible ovarian/gynaecological malignancy.

THE HEARING

3. At the end of these Reasons is a list of witnesses. [Appendix removed for publication.]

4. Janet was present in her hospital bed during the hearing but seemed unable to understand or participate in the hearing. Her parents advised that they had not discussed the proposed procedure or the hearing with her because she would be unable to understand the matters and would become distressed.

5. We had evidence from medical and allied health practitioners indicating that Janet has a global intellectual impairment and we were satisfied on the evidence that, consistently with her presentation during the hearing, she was not able to effectively participate in the hearing.

WHAT MUST BE PROVED?

6. Special medical treatment is defined in s 33(1) of the Guardianship Act 1987 (NSW) as including:

33 Definitions

…

any treatment that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out …

…

If a person is incapable of giving informed consent to special medical treatment, then only the Tribunal may provide consent: Guardianship Act, s 36(1)(b).

7. Under s 33(2) of the Guardianship Act, a person is incapable of giving consent to the carrying out of medical treatment if the person:

1. is incapable of understanding the general nature and effect of the proposed treatment; or

2. is incapable of indicating whether or not he or she consents or does not consent to the treatment being carried out.

8. The Guardianship Act requires that the Tribunal must not give consent to the carrying out of special treatment unless it is satisfied that the treatment is necessary to (a) save the patient’s life or (b) to prevent serious damage to the patient’s health: Guardianship Act, s 45(2).

9. The Guardianship Act imposes a further consideration on the Tribunal in s 44 of that Act. That section directs that if consent is to be given to medical or dental treatment, the Tribunal must be satisfied that it is “appropriate for the treatment to be carried out” and must have regard to the views of the patient, the person who is proposing that medical treatment be carried out on the patient and any persons responsible for the patient.

10. The Tribunal must also take into account matters set out in s 42 of the Guardianship Act which are:

1. the grounds on which it is alleged that the patient is a patient to whom this Part applies;

2. the particular condition of the patient that requires treatment;

3. the alternative courses of treatment that are available in relation to that condition;

4. the general nature and effect of each of those courses of treatment;

5. the nature and degree of the significant risks (if any) associated with each of those courses of treatment; and

6. the reasons for which it is proposed that any particular course of treatment should be carried out.

11. In summary, therefore, the issues for determination by the Tribunal are as follows:

1. Is the treatment proposed by the applicant “special medical treatment”?

2. Is Janet incapable of giving consent to the proposed special treatment?

3. Is the treatment necessary to save Janet’s life or is the treatment necessary to prevent serious damage to Janet’s health?

4. Is the proposed special treatment the most appropriate form of treatment for promoting and maintaining Janet’s health and well-being?

Is the proposed treatment ‘special treatment’?

12. In a Health Professional Report Form for Special Medical Treatment, Renae states that the hysterectomy would mean that Janet was unable to carry a pregnancy and the bilateral salpingo-oophorectomy would mean that she was menopausal. Based on this information the Tribunal is satisfied that the proposed treatment is reasonably likely to render Janet permanently infertile and that it is special medical treatment as defined in the Guardianship Act.

Is Janet incapable of providing consent to the proposed treatment?

13. Section 33(2) of the Guardianship Act provides that a person is incapable of giving or withholding consent to medical or dental treatment if the person:

1. is incapable of understanding the general nature and effect of the proposed treatment; or

2. is incapable of indicating whether or not he or she consents or does not consent to the treatment being carried out.

14. In a letter dated 20 June 2016, a Genetics Fellow and a Clinical Geneticist, indicate that Janet has a chromosomal microdeletion that results in a number of factors including an intellectual disability with global developmental delay.

15. In her application and Health Professional Report Form, Renae indicates that due to her intellectual disability Janet is not able to understand the treatment and its consequences.

16. A Behavior Support Plan dated 27 March 2024, and an Occupational Therapist report dated 16 July 2024 refer to Janet as being unable to carry the functions of daily living. The latter report also refers to a recent diagnosis of autism spectrum disorder and to a significant decline over the previous 12 months in Janet’s cognitive and physical capacity.

17. Janet was present in her hospital bed during the hearing but seemed unable to understand or participate in the hearing. Her presentation was consistent with the descriptions referring to developmental delay and some physical impairments. We were satisfied that due to her intellectual disability Janet is unable to understand the nature and effect of the proposed treatment.

What is the particular condition of the patient that requires treatment?

18. Renae provided the following information about Janet’s condition:

1. Janet has a complex pelvic mass with differential diagnoses of malignancy or tubo-ovarian abscess. She also has pulmonary emboli.

2. Biochemical analysis had shown an increase in markers for infection despite the use of intravenous antibiotics and a CT had shown increased size of the pelvic mass and possibly increased pelvic infection. These indicators suggest that Janet’s condition was deteriorating.

19. Professor Z, a gynaecologist and gynaecological oncologist, said that:

1. The most recent scans suggest that Janet’s condition is due to an abscess of increasing size that is pressing on her pelvis and is adversely affecting her kidney function. However, a malignancy was possible;

2. Whilst the cause of the mass was uncertain, once Janet was undergoing surgery it would be possible to determine if the cause was an abscess and if it could be removed without removing the uterus. However, in his experience it is unusual for inflammation to occur spontaneously in the absence of a malignancy;

3. Surgeons would attempt to retain an ovary but it might be necessary to remove both ovaries;

4. There is an interplay between the pelvic mass and the pulmonary emboli due to a thrombotic relationship resulting from the inflammation. The pulmonary condition increases the risk of death or serious harm to Janet’s health.

What are the alternative options for treatment that are available?

20. In her Health Professional Report Form, Renae advises the following:

1. An alternative treatment would be a laparotomy and drainage and the insertion of a pelvic drain with prolonged intravenous antibiotics. This would be difficult for Janet to manage given her co-morbidities and would leave the potential malignancy untreated.

2. There is a risk that the failure to remove the source of the inflammation (presumed to be the ovaries and uterus) would not cure the infection. If the mass is malignant, failure to remove the uterus and ovaries would contribute to progressive cancer.

21. Professor Z advised that alternative strategies had been trialed but had been unsuccessful. He referred to unsuccessful treatment over the past month with intravenous antibiotics and said that in his opinion the surgery was necessary.

Why is it proposed that the treatment should be carried out?

22. Renae advised that the treatment had been recommended by the Gynaecology Oncology Multi-Disciplinary team. She also indicates that the Agency for Clinical Innovation and the NSW Health Guidelines for management of gynaecological cancers recommend total abdominal hysterectomy and bilateral salpingo-oophorectomy if there is a concern about ovarian cancer, and that “significant benefit might be expected with radical debulking particularly if all the macroscopic disease can be resected”.

23. As indicated above, Professor Z thought that the mass might be an abscess, but in any case, was of the view that that removal of the uterus and at least one ovary might be necessary to control the inflammation. A decision about removal of the uterus and ovaries would need to be made during the surgical procedure when the nature of the mass and its location in respect of other organs could be better assessed.

Are there any risks associated with the proposed treatment?

24. In the application Renae lists risks including pain, bleeding, infection, possible damage to surrounding organs and the usual risks of a general anesthetic. She also advised that due to Janet’s pulmonary embolism she was not considered low risk for a general anesthetic. Despite this she had been assessed by the anesthetics team as suitable for surgery and had in previous days undergone several anesthetic procedures.

25. We are satisfied that the risks of the procedure are not greater than is reasonable having regard to Janet’s differential diagnoses and risks to her life caused by the diagnosed possible conditions.

How will the proposed treatment promote and maintain the patient’s health and wellbeing?

26. We are satisfied that whether or not the growth is malignant it poses a serious risk to Janet’s health and wellbeing and needs to be excised, and to do so may require the proposed treatment.

Is the proposed treatment necessary to save the patient’s life or prevent serious damage to health?

27. We are satisfied that if the growth is malignant, its removal and the removal of the uterus and at least one, possibly two, ovaries is required to prevent metastases and would therefore be lifesaving. We are also satisfied that if the growth is an abscess, its removal is necessary to treat infection and to prevent serious damage to Janet’s organs. We are satisfied that it is possible that the removal of the abscess will require removal of the uterus and ovary or ovaries.

Consent to treatment

28. Having regard to Janet’s compromised pulmonary condition we made consent subject to the opinion of the respiratory team that the anaesthetic risk is acceptable.

29. Having regard to the need for decisions to be made once surgery has commenced, we consented to laparotomy, drainage and excision of left pelvic abscess including oophorectomy with bilateral salpingectomy and, if necessary, hysterectomy and insertion of drainage tubes. We gave these consents to facilitate appropriate decision-making once the growth is examined during surgery. We also consented to any necessary treatment that would normally be provided in association with or directly consequent upon the above treatment.

30. It was proposed to conduct the surgery within days of the Tribunal’s consent, but to allow for difficulties in operating schedules, the consent is effective for a period of three months from the date of this order.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 08 September 2025