KXT

[2022] NSWCATGD 6

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

KXT [2022] NSWCATGD 6

Hearing dates:

5 July 2022

Date of orders:

5 July 2022

Decision date:

05 July 2022

Jurisdiction:

Guardianship Division

Before:

E M Connor, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
J Cootes AM, General Member (Community)

Decision:

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

Bilateral salpingo-oophorectomy under general anaesthetic and any necessary treatment that would normally be provided in association with or directly consequent upon this treatment.

This consent is effective for a period of two weeks from the date of this order.

Catchwords:

CONSENT TO MEDICAL TREATMENT – application for consent to special medical treatment – bilateral salpingo-oophorectomy – 34 year old woman – ovarian teratoma – autoimmune encephalitis – after hours hearing – urgent hearing requested as patient is critically ill – patient is in a coma in an intensive care unit at a public hospital – patient incapable of giving consent to treatment – patient’s family member supports treatment – whether treatment is necessary to save patient’s life or prevent serious damage to health – removal of both ovaries will result in permanent infertility – risk of death if treatment is not provided – consent given.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 4, 33(1)-(2), 34, 42(1)-(2), 44(1)-(2), 44(2)(a)(i)-(iii), 44(3), 45(1)-(2), Pt 5

Cases Cited:

None cited.

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

KXT (the subject person)
EKB (the applicant)
CZD (the spouse)
Public Guardian

File Number(s):

NCAT 2022/00197212

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. KXT is a 34-year-old woman who lives at regional NSW. At the time of the hearing, she was in the intensive care unit of a regional NSW public hospital critically ill. KXT has been unwell for about four weeks and sedated for two weeks. She was transferred to the public hospital from another public hospital in regional NSW because of her deteriorating condition. At the time of the hearing KXT was in a coma and intubated because of the effects of autoimmune encephalitis resulting from a rare and difficult to diagnose type of ovarian teratoma (cancer of the ovary).

2. The Tribunal received a call after hours from EKB, a resident in obstetrics and gynaecology at the public hospital, seeking consent for KXT to have bilateral salpingo-oophorectomy (removal of both ovaries) under general anaesthetic.

3. Consent was being sought from the Tribunal because KXT’s medical condition means she is unable to provide consent herself. The procedure will result in KXT being unable to have any more children and therefore constitutes special medical treatment. If a person is incapable of giving informed consent to special medical treatment, then only the Tribunal may provide consent.

4. KXT has a husband, CZD, and three children. CZD is supportive of the proposed surgery. He has consented as his wife’s person responsible to the removal of her left ovary, which has been identified as the site of the teratoma. CZD cannot, however, provide consent to the removal of both ovaries because it constitutes special medical treatment.

The hearing

5. The hearing was conducted urgently on the evening of 5 July 2022 because KXT’s treating medical team wanted to schedule the surgery for early the following morning.

6. At the end of these Reasons for Decision are lists of the parties to the review and the witnesses who attended the hearing. [Appendix removed for publication.]

Settlement

7. The Tribunal may, where it considers appropriate, use resolution processes to bring the parties to a settlement. There was no conflict in this matter.

APPLICATION FOR CONSENT TO SPECIAL MEDICAL TREATMENT

The issues before the Tribunal

8. In determining the application, the issues before the Tribunal are as follow:

• Is KXT incapable of consenting to the proposed treatment?

• Does the applicant have standing to make the application?

• Does the treatment proposed amount to special medical treatment?

• Is the treatment likely to render KXT permanently infertile?

• Is it appropriate that the proposed treatment be carried out and is the proposed treatment the most appropriate form of treatment for promoting and maintaining KXT’s health and wellbeing?

• Is the treatment necessary to save KXT’s life or prevent serious damage to her health?

Is KXT incapable of consenting to the proposed treatment?

9. In accordance with s 34 of the Guardianship Act 1987 (NSW), in order for the Tribunal to be able to provide the consent sought by the applicant it must be satisfied that KXT is above the age of 16 years and is incapable of giving consent to the carrying out of medical or dental treatment. Section 33(2) of the Guardianship Act directs that a person is incapable of giving consent if they are incapable of understanding the general nature and effect of the proposed treatment or are incapable of indicating whether they consent or do not consent to the treatment.

10. We were informed by EKB, the applicant, and Dr Z, obstetrics and gynaecology registrar at the public hospital, that KXT was at the time of the hearing in a comatose state and unresponsive. She was therefore incapable of giving or withholding consent to the proposed treatment.

11. After considering the evidence, the Tribunal was satisfied that KXT is incapable of giving or withholding consent to the proposed medical treatment and given that she is above the age of 16 years, Pt 5 of the Guardianship Act could apply to her.

Does the applicant have standing to make the application?

12. Whilst any person may apply to the Tribunal for consent to carry out medical treatment (s 42(1) of the Guardianship Act), the Tribunal must be satisfied that the applicant has sufficient interest in the health and wellbeing of the person to whom the consent relates (s 44(3) of the Guardianship Act).

13. As one of KXT’s treating doctors at the public hospital, the Tribunal considered that EKB, as applicant, had sufficient interest in KXT’s health and wellbeing to allow the application to proceed.

Does the treatment proposed amount to special medical treatment?

14. The Guardianship Act defines special medical treatment as including 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.

15. Dr Z gave evidence that the removal of both KXT’s ovaries will have the effect of rendering her permanently infertile and we were satisfied that the proposed treatment amounts to special medical treatment as defined in s 33(1) of the Guardianship Act.

Is it appropriate that the proposed treatment be carried out and is the proposed treatment the most appropriate form of treatment for promoting and maintaining KXT’s health and wellbeing?

16. The Tribunal may consent to the treatment proposed by the applicant if the Tribunal is satisfied that it is appropriate for the treatment to be carried out: Guardianship Act, s 44(1). The Tribunal must not consent to medical treatment unless the Tribunal is satisfied that the treatment is the most appropriate form of treatment for promoting and maintaining a patient’s health and wellbeing: Guardianship Act, s 45(1).

17. Section 44(2) of the Guardianship Act provides several matters that the Tribunal must consider in determining whether the treatment proposed is appropriate and it is useful to apply the evidence elicited at the hearing to each of those matters as follows.

The Tribunal is to have regard to the views of KXT: Guardianship Act, s 44(2)(a)(i)

18. KXT’s views could not be obtained because she was unconscious at the time of the hearing.

The Tribunal shall have regard to the views of the person proposing the treatment: Guardianship Act, s 44(2)(a)(ii)

19. EKB and Dr Z gave evidence that KXT experienced decreased levels of consciousness after her admission to hospital and became comatose and unresponsive, requiring her to be intubated. Extensive investigations over several weeks had been carried out to try to determine the cause of her illness. Fluid from lumbar puncture showed a substance likely to be from a teratoma and causing the autoimmune encephalitis. Following advice from a consultant obstetrician and gynaecologist at a public hospital in Sydney a pelvic ultrasound was conducted which revealed a mass on her left ovary consistent with a rare teratoma releasing hormones causing autoimmune encephalitis.

20. All alternative medical management options to treat the encephalitis have been explored without satisfactory response. KXT’s condition has continued to deteriorate, and she is critically ill and at risk of dying. The treating team at the public hospital sought guidance on managing this rare condition from the tertiary referral service at the Sydney public hospital. The gynaecology oncologist from the Sydney public hospital recommended that first line best management is for both KXT’s ovaries to be removed because it is highly likely that her right ovary will also contain some abnormal cells, even though it appeared normal on the ultrasound and may not appear to be impacted when examined during surgery.

21. The treating team at the public hospital accepts the advice of the experienced gynaecology oncologist at the Sydney public hospital that removal of both ovaries is the best option for KXT. It is planned that the surgery will be conducted laparoscopically, but open surgery may be necessary.

The Tribunal shall have regard to the views of any person responsible: Guardianship Act, s 44(2)(a)(iii)

22. KXT’s husband, CZD, is considered to be her ‘Person Responsible’ as defined in the Guardianship Act. He can consent to major or minor medical treatment for his wife and has already consented to surgery to remove her left ovary, planned to take place as soon as possible.

23. CZD told us that he and KXT already have three children and she has a long-acting contraceptive implant in her arm. He told the Tribunal that she told him two or three months ago that she did not want to have any more children. CZD wants both KXT’s ovaries to be removed now because she is ‘fighting for her life’. He wants her to have the best chance of recovering without the risk of recurrence of the cancer and encephalitis and need for further surgery.

The Tribunal must have regard to the matters referred to in s 42(2) of the Guardianship Act

24. The matters provided in s 42(2) of the Guardianship Act to which the Tribunal must have regard are:

• the grounds on which it is alleged the patient is a patient to whom this part applies;

• the particular condition of the patient that requires treatment;

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

• the general nature and effect of each of those courses of treatment;

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

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

25. These matters have largely been addressed already in these Reasons for Decision.

26. Dr Z gave evidence that there is a high mortality rate associated with KXT’s condition even with the recommended treatment. Without treatment the risk of death is greater than 50 percent. At the very least KXT needs the surgery consented to by her husband as person responsible (the removal of the left ovary shown to contain a tumour) but best treatment at this time is removal of both ovaries. The risks of surgery to remove both ovaries are not greater than the risks associated with removal of the left ovary only.

27. Dr Y, registrar in anaesthetics at the public hospital, told us that KXT has not yet been assessed by the anaesthetics team and that the risks of the anaesthetic will depend on the approach that is taken. There are the usual risks associated with anaesthetics (pain, nausea and vomiting), however, given that KXT is already intubated, and her airway controlled, the risks usually associated with an anaesthetic are reduced.

28. The Tribunal inquired whether KXT’s left ovary, where the teratoma cancer can be seen on ultrasound, could be removed first so that, if she then recovered sufficiently to communicate her views, she could decide whether she wanted to have her right ovary removed also. Dr Z responded that this would be the fallback position if consent was not provided for the removal of both ovaries, but it was not the optimal treatment option. KXT is so critically ill that it is not advisable to expose her to the risk of multiple surgeries and it is considered in her interest for both ovaries to be removed as soon as possible to optimise her chances of recovering. She reiterated that it is likely that KXT’s right ovary will also contain abnormal cells.

Is the treatment necessary to save KXT’s life or prevent serious damage to her health?: Guardianship Act, s 45(2)

29. There are restrictions on the Tribunal’s power to consent to special treatment. In the case of special medical treatment of the kind proposed that will result in permanent infertility, the Tribunal must not give consent unless satisfied that the treatment is necessary to save KXT’s life or prevent serious damage to her health. The evidence given by Dr Z and EKB discussed above satisfied the Tribunal that the proposed surgery to remove both of KXT’s ovaries is necessary to prevent serious damage to her health, and likely necessary to save her life.

The Tribunal shall have regard to the objects of Pt 5 of the Guardianship Act

30. The objects of Pt 5 of the Guardianship Act are:

• to ensure that people are not deprived of necessary medical or dental treatment merely because they lack the capacity to consent to the carrying out of such treatment; and

• to ensure that any medical or dental treatment that is carried out on such people is carried out for the purpose of promoting and maintaining their health and wellbeing;

• KXT should not be deprived of medical treatment which might potentially be required to save her life merely because she lacks the capacity to consent to the carrying out of such treatment.

31. On applying the objects of Pt 5 of the Guardianship Act the Tribunal must consider KXT’s wellbeing as well as the promotion of her health. Further, the Tribunal is charged with a duty of observing the general principles of the Guardianship Act in accordance with s 4.

32. The Tribunal, in considering whether to provide the consent sought, must not only consider the impact upon KXT’s health, but also her general wellbeing.

Tribunal Findings

33. In analysing the evidence provided in terms of the legislative framework required to be applied in determining the application, we concluded that:

1. KXT is a person who is incapable of providing consent to the proposed special medical treatment and who could potentially face death if such treatment is not provided to her;

2. the proposed medical treatment, bilateral salpingo-oophectomy, is the most appropriate course of action to promote KXT’s health and general wellbeing;

3. the proposed treatment is necessary to prevent serious damage to KXT’s health and potentially to save her life; and

4. KXT should not be deprived of such treatment merely because she lacks the capacity to consent to it.

**********

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: 15 July 2022