JZL - [2021] NSWCATGD 13

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: JZL [2021] NSWCATGD 13
Hearing dates: 30 June 2021
Date of orders: 30 June 2021
Decision date: 30 June 2021
Jurisdiction: Guardianship Division
Before: R H Booby, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
D R Sword, General Member (Community)
Decision:
The Tribunal consents to the following special medical treatment being provided to JZL:
Mid Line laparotomy with removal of pelvic mass, bilateral salpingo-oophorectomy and hysterectomy with peritoneal washing and omental biopsy 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 1 month(s) from the date of this order.
This consent is effective even though JZL objects to the treatment.
1. A guardianship order is made for JZL.
2. MAL of [Address removed for publication.] is appointed as the guardian.
3. This is a continuing guardianship order for a period of six months from 30 June 2021.
4. This is a limited guardianship order giving the guardian(s) custody of JZL to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Health care
To decide what health care JZL may receive.
b) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where JZL is not capable of giving a valid consent.
c) Services
To make decisions about services to be provided to JZL.
AUTHORITY:
6. The guardian has the following authority:
a) Authority to override objections to medical treatment
i) The guardian may override the objection of JZL to major or minor medical treatment.
CONDITION:
7. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring JZL to an understanding of the issues and to obtain and consider her views before making significant decisions.

Catchwords:
CONSENT TO MEDICAL TREATMENT – application for consent to special medical treatment – laparotomy with bilateral salpingo-oophorectomy and hysterectomy – 43 year old woman – significant mental health issues – large mass affecting kidneys and legs – whether treatment is the most appropriate form to promote health and well-being – whether treatment is necessary to save patient’s life or prevent serious damage to health – consent given
GUARDIANSHIP – application for a guardianship order – patient in hospital – pre and post operative care required – mistaken beliefs could result in refusal of medical treatment and services – private guardian appointed

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 36(1)(b), 42, 44, 45(2)

Cases Cited:
C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)
IF v IG [2004] NSWADTAP 3
P v D1 & Ors [2011] NSWSC 257
P v NSW Trustee and Guardian [2015] NSWSC 579
Re B [2011] NSWSC 1075

Texts Cited:
None cited.

Category: Principal judgment
Parties:

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 JZL

Details

AGLC: JZL [2021] NSWCATGD 13
Case: [2021] NSWCATGD 13
Decision Date: 30 June 2021

CaseChat Overview and Summary

This case involved a 43-year-old woman, referred to as JZL, who was hospitalised with significant mental health issues and a large mass affecting her kidneys and legs. The Tribunal was required to decide whether the proposed special medical treatment was the most appropriate form to promote JZL's health and well-being and whether the treatment was necessary to save her life or prevent serious damage to her health. The application also sought a guardianship order to ensure JZL received the necessary pre and post-operative care and to prevent her from refusing medical treatment and services due to mistaken beliefs.

The Tribunal found that the proposed special medical treatment, including a mid-line laparotomy with removal of the pelvic mass, bilateral salpingo-oophorectomy, hysterectomy, peritoneal washing, omental biopsy, and any necessary associated treatment, was in JZL's best interests to promote her health and well-being. The Tribunal also found that the treatment was necessary to save her life or prevent serious damage to her health. Consequently, the Tribunal consented to the special medical treatment being provided to JZL, effective for a period of one month from the date of the order, despite JZL's objection to the treatment. Furthermore, the Tribunal made a guardianship order appointing MAL as JZL's guardian for a period of six months from 30 June 2021. The guardian has the authority to make decisions about JZL's health care, medical and dental consent, and services, including the ability to override JZL's objections to medical treatment. The guardian must, however, take all reasonable steps to bring JZL to an understanding of the issues and to obtain and consider her views before making significant decisions.

In summary, the Tribunal granted the application for consent to special medical treatment and the appointment of a guardian for JZL, with specific functions and authority to ensure she receives the necessary care and treatment.

Orders

Orders of the court

The Tribunal consents to the following special medical treatment being provided to JZL:

Mid Line laparotomy with removal of pelvic mass, bilateral salpingo-oophorectomy and hysterectomy with peritoneal washing and omental biopsy 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 1 month(s) from the date of this order.

This consent is effective even though JZL objects to the treatment.

1. A guardianship order is made for JZL.

2. MAL of [Address removed for publication.] is appointed as the guardian.

3. This is a continuing guardianship order for a period of six months from 30 June 2021.

4. This is a limited guardianship order giving the guardian(s) custody of JZL to the extent necessary to carry out the functions below.

FUNCTIONS:

5. The guardian has the following functions:

a) Health care

To decide what health care JZL may receive.

b) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where JZL is not capable of giving a valid consent.

c) Services

To make decisions about services to be provided to JZL.

AUTHORITY:

6. The guardian has the following authority:

a) Authority to override objections to medical treatment

i) The guardian may override the objection of JZL to major or minor medical treatment.

CONDITION:

7. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring JZL to an understanding of the issues and to obtain and consider her views before making significant decisions.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	JZL [2021] NSWCATGD 13
Hearing dates:	30 June 2021
Date of orders:	30 June 2021
Decision date:	30 June 2021
Jurisdiction:	Guardianship Division
Before:	R H Booby, Senior Member (Legal) Dr B McPhee, Senior Member (Professional) D R Sword, General Member (Community)
Decision:	The Tribunal consents to the following special medical treatment being provided to JZL: Mid Line laparotomy with removal of pelvic mass, bilateral salpingo-oophorectomy and hysterectomy with peritoneal washing and omental biopsy 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 1 month(s) from the date of this order. This consent is effective even though JZL objects to the treatment. 1. A guardianship order is made for JZL. 2. MAL of [Address removed for publication.] is appointed as the guardian. 3. This is a continuing guardianship order for a period of six months from 30 June 2021. 4. This is a limited guardianship order giving the guardian(s) custody of JZL to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Health care To decide what health care JZL may receive. b) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where JZL is not capable of giving a valid consent. c) Services To make decisions about services to be provided to JZL. AUTHORITY: 6. The guardian has the following authority: a) Authority to override objections to medical treatment i) The guardian may override the objection of JZL to major or minor medical treatment. CONDITION: 7. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring JZL to an understanding of the issues and to obtain and consider her views before making significant decisions.
Catchwords:	CONSENT TO MEDICAL TREATMENT – application for consent to special medical treatment – laparotomy with bilateral salpingo-oophorectomy and hysterectomy – 43 year old woman – significant mental health issues – large mass affecting kidneys and legs – whether treatment is the most appropriate form to promote health and well-being – whether treatment is necessary to save patient’s life or prevent serious damage to health – consent given GUARDIANSHIP – application for a guardianship order – patient in hospital – pre and post operative care required – mistaken beliefs could result in refusal of medical treatment and services – private guardian appointed
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 36(1)(b), 42, 44, 45(2)
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) IF v IG [2004] NSWADTAP 3 P v D1 & Ors [2011] NSWSC 257 P v NSW Trustee and Guardian [2015] NSWSC 579 Re B [2011] NSWSC 1075
Texts Cited:	None cited.
Category:	Principal judgment
Parties: