KS and CL - [2015] WASAT 9

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: KS and CL [2015] WASAT 9

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MR J MANSVELD (SENIOR MEMBER)
MR P McNAB (SENIOR MEMBER)

HEARD: 29 JANUARY 2015 AND 2 FEBRUARY 2015

DELIVERED : 2 FEBRUARY 2015

PUBLISHED : 4 FEBRUARY 2015

FILE NO/S: GAA 385 of 2015

BETWEEN: KS
Applicant
AND
CL
Represented Person
AND
PUBLIC ADVOCATE
Other Party

Catchwords:

Guardianship and administration Application for appointment of a guardian to consent to an abortion Whether statutory presumption of capacity is rebutted Whether a guardian can lawfully authorise an abortion Whether a guardian can give 'informed consent' for an abortion Words and phrases: 'Counselling'

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(1), s 4(3), s 40, s 43(1), s 43(1)(c)
Health Act 1911 (WA), s 334
Criminal Code (WA), s 199(1)

Result:

Application for guardianship order dismissed

Summary of Tribunal's decision:

An urgent application was made to the Tribunal for the appointment of a guardian for a 19yearold woman in order to make treatment decisions for her and, in particular, to consent to an abortion. The woman is 15 to 16 weeks pregnant.
The woman has a 'provisional diagnosis' of schizophrenia and a 'differential diagnosis' of severe Post Traumatic Stress Disorder. Although the woman does not communicate verbally, she has clearly and repeatedly indicated to health professionals that she wishes to terminate the pregnancy.
The Tribunal was not satisfied on the evidence presented to it that the statutory presumption of capacity is rebutted in this case. The Tribunal also determined that there is no 'need' (within the meaning of s 43(1)(c) of the Guardianship and Administration Act 1990 (WA)) for the appointment of a guardian to consent to an abortion, because a guardian cannot give 'informed consent' for an abortion and therefore cannot lawfully authorise the procedure (under s 334 of the Health Act 1911 (WA)).
The application for the appointment of a guardian was therefore dismissed.

Category: B

Representation:

Counsel:

Applicant:     In Person
Represented Person       :     N/A
Other Party                   :     Ms ID Petersen with Ms CJ Thatcher

Solicitors:

Applicant:     N/A
Represented Person       :     N/A
Other Party                   :     State Solicitor's Office

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

GC and PC [2014] WASAT 10

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Ms CL, who we will refer to as 'the proposed represented person', is a 19yearold indigenous woman who lives in the Pilbara. The proposed represented person is currently admitted for antibiotic treatment at Port Hedland Hospital.
Dr DC, a psychiatrist with the Pilbara Mental Health and Drug Service, who has seen the proposed represented person on two occasions over the last three months, once in person and once by video, who we will refer to as 'the psychiatrist', considers that the proposed represented person has a psychiatric illness and has given a 'provisional diagnosis' of schizophrenia with a 'differential diagnosis' of severe Post Traumatic Stress Disorder. The psychiatrist also states that the proposed represented person has 'complicating substance abuse' in terms of alcohol and cannabis use.
The proposed represented person is 15 to 16 weeks pregnant. Although she does not communicate verbally, unless she has consumed alcohol, the proposed represented person has clearly and repeatedly indicated by non-verbal means to the psychiatrist, Dr CC, a general practitioner working in obstetrics at Port Hedland, who we will refer to as 'the GP', Ms KS, a clinical nurse specialist with the Pilbara Mental Health and Drug Service, who we will refer to as 'the nurse', a former case manager and Ms KW, an Aboriginal health worker who has known Ms CL all her life and who asked her questions in her language, that she (the proposed represented person) wishes to terminate the pregnancy.
It appears that a termination of the pregnancy was planned to take place in Perth about a week ago, but the proposed represented person did not travel to Perth. A surgeon and an anaesthetist are available to perform a termination of the pregnancy in Port Hedland. However, these doctors have expressed concerns as to whether the proposed represented person has capacity to give informed consent for an abortion.
The nurse therefore made an urgent application to the Tribunal under s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act), for the Tribunal to make a guardianship order appointing the proposed represented person's grandfather, Mr BW (grandfather), as limited guardian for the proposed represented person to make treatment decisions for her and, in particular, to consent to an abortion.
The grandfather was present at the hearing, consented to be appointed as limited guardian for the proposed represented person and expressed the view that the proposed represented person should not have a baby because of 'mental problems'.
The Public Advocate and a member of her office attended the hearing and also instructed the State Solicitor's Office to make submissions to the Tribunal in relation to whether a guardian appointed under the GA Act can lawfully authorise the performance of an abortion. After hearing opening statements and evidence, the Tribunal adjourned the hearing to enable the nurse, the psychiatrist, the general practitioner, the surgeon and the anaesthetist to review written submissions prepared by the State Solicitor's Office in relation to that issue, to consider their positions in light of those submissions and to address the Tribunal in response to those submissions.

Presumption of capacity

Section 4(1) of the GA Act states that, in dealing with proceedings commenced under that Act, the Tribunal 'shall observe the principles set out in this section'. One of those principles is the socalled 'presumption of capacity' in s 4(3) of the GA Act which states as follows:
Every person shall be presumed to be capable of:
(a)looking after his [or her] own health and safety;
(b)making reasonable judgments in respect of matters relating to his [or her] person;
(c)managing his [or her] own affairs; and
(d)making reasonable judgments in respect of matters relating to his [or her] estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
In particular, in order for the statutory presumption of capacity to be rebutted, and in order for the Tribunal to be able to make a guardianship order in respect of a proposed represented person, the Tribunal must be satisfied under s 43(1) of the GA Act that the proposed represented person:
(a)has attained the age of 18 years;
(b)is
(i)incapable of looking after his [or her] own health and safety; [or]
(ii)unable to make reasonable judgments in respect of matters relating to his [or her] person; or
(iii)in need of oversight, care or control in the interests of his [or her] own health and safety or for the protection of others;
and
(c)is in need of a guardian,
In GC and PC [2014] WASAT 10 the Full Tribunal said the following at [36]:
… The statutory presumption of capacity is a fundamental principle in the GA Act and serves to protect persons who are the subject of proceedings under the GA Act from having their decision-making capacity removed from them and a substitute decision-maker appointed for them under the Act. Because of the significant consequences for an individual of having their decision-making capacity removed from them and a substitute decision-maker appointed for them under the GA Act, clear and cogent evidence is required to rebut the statutory presumption of capacity.

Is the presumption of capacity rebutted in this case?

We are not satisfied on the evidence presented to us that the statutory presumption of capacity is rebutted in this case. The evidence is not clear and cogent. At its highest, it is equivocal. It does not prove to the satisfaction of the Tribunal that the proposed represented person is incapable of looking after her own health and safety, unable to make reasonable judgments in respect of matters relating to her person, or in need of oversight, care or control in the interests of her own health and safety or for the protection of others.
The psychiatrist expressed his opinions cautiously about the proposed represented person's capacity, having regard to his limited personal contact with her. The psychiatrist gave evidence that he is 'not sure' whether the proposed represented person can make reasonable decisions about her personal healthcare. He said that he suspects that the proposed represented person 'has at least a basic understanding of the [termination of pregnancy] procedure' and that 'it is possible that she has a more detailed understanding'.
Although the psychiatrist expressed a concern as to whether the proposed represented person understands the potential risks of a termination procedure, he said that he is 'not able to say that she is not able to give consent'. Furthermore, although the psychiatrist gave evidence that the proposed represented person's mental illness 'may affect her ability to understand complex ideas' and 'weigh up the risk/benefit analysis', he added that it would be 'drawing a long bow' to reason from the diagnosis of mental illness that the proposed represented person is incapable of making reasonable judgments about her health in general, or the termination procedure in particular.
The general practitioner gave evidence that she is 'not quite sure' that the proposed represented person can understand the risks of a termination procedure. However, the general practitioner said that she has had a 'very clear' and 'very basic' discussion with the proposed represented person and that the proposed represented person 'is very clear that she wants a termination'.
Similarly, the nurse gave evidence of 'very clear notes' from the proposed represented person's case worker that the proposed represented person 'definitely indicated that she doesn't want to have the baby' and that the proposed represented person 'was definitely able to indicate' to the nurse that she did not want to keep the pregnancy. Furthermore, importantly, the nurse gave evidence that the proposed represented person indicated to her 'that she understood that there could be complications from the procedure'. The nurse emphasised that when the proposed represented person indicated to the nurse that the proposed represented person understood that there could be complications from the procedure, the proposed represented person was 'spontaneous' in her communication and 'she indicated that she understood'.
Finally, the general practitioner gave evidence that the proposed represented person clearly indicated that she wants antibiotics to treat an infection that she currently has and that the proposed represented person's consent for such medical treatment has been accepted by medical staff.
On the whole of this evidence, we are not satisfied that the statutory presumption of capacity has been displaced, either generally or in relation to a termination of pregnancy procedure in particular, in the circumstances of this case. We therefore find that the proposed represented person is not a person for whom a guardianship order can be made at this time.
However, in determining that we are not satisfied that the statutory presumption of capacity has been displaced, we emphasise that we are not making any finding as to whether the proposed represented person has capacity to give informed consent to an abortion for the purposes of s 334 of the Health Act 1911 (WA) (Health Act).

Is the proposed represented person in need of a guardian?

Furthermore, and in any case, we are not satisfied that the proposed represented person is 'in need of a guardian' for the purposes of s 43(1)(c) of the GA Act, either in relation to medical treatment generally or in relation to the termination of pregnancy procedure in particular.
Generally, in relation to medical treatment, as noted earlier, the proposed represented person's consent has been accepted by medical staff and she is receiving appropriate medical treatment.
Further, in relation to the termination of pregnancy procedure in particular, we accept the submission made on behalf of the Public Advocate that a guardian appointed under the GA Act to make treatment decisions for a represented person cannot lawfully authorise the performance of an abortion and we therefore find that the proposed represented person is not 'in need of a guardian' for the purposes of s 43(1)(c) of the GA Act.
Section 199(1) of the Criminal Code (WA) (Criminal Code) states as follows:
(1)It is unlawful to perform an abortion unless
(a)the abortion is performed by a medical practitioner in good faith and with reasonable care and skill; and
(b)the performance of the abortion is justified under section 334 of the Health Act 1911.
Section 334(3) to s 334(6) of the Health Act states as follows:
(3)Subject to subsections (4) and (7), the performance of an abortion is justified for the purposes of section 199(1) of The Criminal Code if, and only if
(a)the woman concerned has given informed consent; or
(b)the woman concerned will suffer serious personal, family or social consequences if the abortion is not performed; or
(c)serious danger to the physical or mental health of the woman concerned will result if the abortion is not performed; or
(d)the pregnancy of the woman concerned is causing serious danger to her physical or mental health.
(4) Subsection (3)(b), (c) and (d) do not apply unless the woman has given informed consent, or, in the case of paragraphs (c) or (d), it is impracticable for her to do so.
(5)In this section
informed consent means consent freely given by the woman where
(a)a medical practitioner has properly, appropriately and adequately provided her with counselling about the medical risk of termination of pregnancy and of carrying a pregnancy to term; and
(b)a medical practitioner has offered her the opportunity of referral to appropriate and adequate counselling about matters relating to termination of pregnancy and carrying a pregnancy to term; and
(c)a medical practitioner has informed her that appropriate and adequate counselling will be available to her should she wish it upon termination of pregnancy or after carrying the pregnancy to term.
(6)A reference in subsection (5) to a medical practitioner does not include a reference to
(a)the medical practitioner who performs the abortion; nor
(b)any medical practitioner who assists in the performance of the abortion.
Section 334(7) of the Health Act imposes further requirements for the performance of an abortion if the woman concerned is at least 20 weeks pregnant. This provision is not relevant at this time.
In our view, the detailed statutory requirements for 'informed consent' set out in s 334(5) of the Health Act and, in particular, the requirement for proper, appropriate and adequate provision of counselling to the pregnant woman, the requirement for the offer of the opportunity of referral to appropriate and adequate counselling to the pregnant woman and the requirement for information to the pregnant woman that appropriate and adequate counselling will be available to her should she wish it, which must occur before informed consent can be given, clearly indicate that informed consent to an abortion can only be given under s 334 of the Health Act by the pregnant woman concerned and cannot be given by a guardian appointed under the GA Act to make treatment decisions for her.
'Counselling' is not defined in the Health Act and bears its ordinary meaning. The noun 'counselling' is defined in the Macquarie Dictionary (5^th ed, 2009) at page 388 as:
[T]he provision of help and advice, especially to someone experiencing difficulty, by a person trained to do so[.]
In the context of the requirements for informed consent for an abortion under s 334(5) of the Health Act, it is relevantly the pregnant woman concerned who is 'experiencing difficulty' for the purpose of the definition of 'counselling' and the statutory requirement for counselling plainly contemplates that the help and advice is to be provided to the pregnant woman concerned and cannot be provided to her substitute decisionmaker and therefore that 'informed consent' for an abortion can only be given by the pregnant woman personally and cannot be given by her substitute decisionmaker.
This is also apparent, in our view, from the use of the word 'her' in each of paragraphs (a), (b) and (c) (twice) of s 334(5), and the use of the word 'she' in paragraph (c) of that subsection.
Furthermore, although it could be argued that 'counselling about the medical risk of termination of pregnancy and of carrying a pregnancy to term' required by paragraph (a) of s 334(5) of the Health Act could potentially be given to a substitute decisionmaker, the requirements of paragraphs (b) and (c) of s 334(5) of the Health Act contemplate counselling that extends beyond objective considerations of medical risk which the counselling required by paragraph (a) of the subsection involves. As the Public Advocate submits, these requirements would be 'superfluous in practical terms', or otiose, if the offer and information required by these provisions can be given to someone other than the woman concerned.
Finally, the requirement that 'informed consent' for an abortion can only be given by the pregnant woman personally is further reinforced by subsections (3) and (4) of s 334 of the Health Act, which expressly provides for the circumstances in which an abortion can be performed where it is 'impracticable' to obtain informed consent. It will be 'impracticable' to obtain informed consent where a woman does not have capacity to give that informed consent.
As the Health Act has expressly prescribed the circumstances in which an abortion can be performed where it is impracticable for the pregnant woman to give informed consent, there is a clear legislative indication that 'informed consent' can only be given by the pregnant woman personally and cannot be given by a guardian who has been appointed to make treatment decisions for the woman.
The proposed represented person is therefore not in 'need of a guardian' within the meaning of s 43(1)(c) of the GA Act to consent to a termination of her pregnancy, because a guardian cannot lawfully authorise the performance of an abortion under s 334 of the Health Act.

Conclusion

As the statutory presumption of capacity has not been rebutted, and as, in any case, there is no 'need' within the meaning of the GA Act for the appointment of a guardian to make treatment decisions for the proposed represented person, the Tribunal is unable to make the guardianship order sought in this case. We would reach the same conclusion whether the issue was framed in terms of power or jurisdiction of the Tribunal in this particular statutory framework. The application for a guardianship order should, therefore, be dismissed.
Finally, we note that the psychiatrist and the general practitioner both appear to consider that serious danger to the mental health of the proposed represented person will result if the abortion is not performed or that the pregnancy is causing serious danger to the proposed represented person's mental health. If that is in fact their opinion, then the performance of an abortion may be 'justified' for the purposes of s 199(1) of the Criminal Code and therefore lawful, if it is 'impracticable' for the proposed represented person to give informed consent. The medical practitioners should give consideration to this issue. This is not a matter within the jurisdiction of the Tribunal, and we express no opinion in relation to this issue.

Order

For these reasons, we make the following order:
1.The application for a guardianship order in respect of [Ms CL] is dismissed.

I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT