JS and CS - [2009] WASAT 90

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: JS and CS [2009] WASAT 90

MEMBER: JUSTICE J A CHANEY (PRESIDENT)
MS J TOOHEY (SENIOR MEMBER)
DR B MENDELAWITZ (SENIOR SESSIONAL MEMBER)

HEARD: 29 APRIL 2009

DELIVERED : 7 MAY 2009

FILE NO/S: GAA 138 of 2009

BETWEEN: JS
Applicant
AND
CS
Proposed Represented Person

Catchwords:

Guardianship - Application by parents of young woman for appointment as her guardians to apply for and consent to hysterectomy - Application for Tribunal's consent to hysterectomy - Hysterectomy proposed to stop heavy and painful menstruation - Not proposed for fertility control - Proposed hysterectomy not a procedure for sterilisation within the meaning of the Guardianship and Administration Act 1990 (WA) - Consent of Tribunal not required - Previous treatment had been provided with consent of parents pursuant to s 119 of Guardianship and Administration Act 1990 (WA) - Tribunal satisfied in young woman's best interests that parents have formal authority - Parents appointed joint guardians to consent to treatment including hysterectomy

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 43(1), s 56, s 57(1)(a), s 59(1), s 63, s 63(1), s 91(1)(b)(i), s 119

Result:

Parents appointed joint guardians to consent to treatment including hysterectomy

Category: B

Representation:

Counsel:

Applicant: Self-represented
Proposed Represented Person : N/A

Solicitors:

Applicant: Self-represented
Proposed Represented Person : N/A

Case(s) referred to in decision(s):

Re Jane (1998) 94 FLR 1
Secretary, Department of Health and Community Services v JWB and SMB (Marion's case) (1992) 175 CLR 218

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The parents of a young woman with an intellectual disability applied to the Tribunal for an order appointing them her joint guardians and for the Tribunal's consent to her undergoing a hysterectomy.
The hysterectomy was proposed in order to stop the young woman menstruating. For 10 years she had experienced heavy and painful bleeding. Her gynaecologist had tried oral contraceptives, Depo-Provera injections and a Mirena intra-uterine contraceptive device, separately and in various combinations, to limited effect. The young woman was experiencing virtually continuous bleeding, often accompanied by painful cramps. The bleeding distressed her and was affecting her quality of life; she could no longer go swimming and had gained a lot of weight.
The Tribunal was satisfied that the young woman had expressed clearly her wish for the hysterectomy because it would mean an end to her symptoms. It was satisfied that she understood it would stop her menstruating and that she would no longer be able to bear children, but that her understanding was very limited. The Tribunal found she was not able to appreciate the nature, significance and risks of the operation and needed someone to consent to it on her behalf.
The Tribunal found that, as the sole purpose of the hysterectomy was to stop the symptoms associated with menstruation, it was not a procedure for sterilisation within the meaning of the Guardianship and Administration Act 1990 (WA).…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading JS and CS

Details

AGLC: JS and CS [2009] WASAT 90
Case: [2009] WASAT 90
Decision Date: 7 MAY 2009

CaseChat Overview and Summary

In the case of JS and CS, the parents of a young woman with intellectual disability sought to be appointed as their daughter’s guardians to enable them to consent to a proposed hysterectomy. The tribunal was also asked to consent to the procedure. The procedure was proposed to alleviate the young woman’s heavy and painful menstruation and was not intended as a method of fertility control. The court was required to determine whether the tribunal had the authority to consent to the proposed procedure. The tribunal held that the procedure was not a form of sterilisation within the meaning of the Guardianship and Administration Act 1990 (WA) and so did not require the tribunal's consent. The tribunal was satisfied that the procedure was in the young woman’s best interests and appointed the parents as joint guardians to consent to the treatment including the hysterectomy.

The legal issues before the court involved the interpretation of the Guardianship and Administration Act 1990 (WA) and the extent of the tribunal's authority to consent to medical procedures. The court examined the definition of sterilisation and whether the proposed hysterectomy fell within that definition. The tribunal had previously authorised other treatments for the young woman under s*119 of the Act with the consent of her parents. The court held that the procedure in question was not a form of sterilisation, and therefore, the tribunal's consent was not required. The court further determined that it was in the young woman's best interests for her parents to be appointed as her guardians to consent to the procedure.

The court’s reasoning focused on the statutory definitions and the specific context of the young woman's medical needs. The court noted that the Guardianship and Administration Act 1990 (WA) provided a framework for determining the best interests of individuals who lack capacity to consent to medical treatment. The court held that the tribunal had the authority to appoint guardians to consent to medical procedures, but this authority was limited to procedures defined as sterilisation within the Act. As the proposed hysterectomy did not fall within the statutory definition of sterilisation, the tribunal did not require the court’s consent for the procedure. The court concluded that the procedure was in the young woman’s best interests and appointed her parents as her joint guardians to consent to the treatment, including the hysterectomy.

The final orders of the court were that the tribunal was not required to consent to the proposed hysterectomy and that the parents were appointed as joint guardians to consent to the treatment. The court's decision affirmed the parents' role in making medical decisions on behalf of their daughter and provided clarity on the tribunal's authority in such matters.

Orders