LKZ - [2023] QCAT 315

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

LKZ [2023] QCAT 315

PARTIES:

In applications about matters concerning LKZ

APPLICATION NO/S:

GAA8290-23; GAA 8293-23

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

18 July 2023 (delivered ex tempore)

HEARING DATE:

18 July 2023

HEARD AT:

Brisbane

DECISION OF:

Senior Member Browne, Presiding
Member Dr Pinkerton

ORDERS:

1. The Tribunal consents for LKZ to undergo a termination of pregnancy.

2. This order remains current for a period of ten (10) days.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – OTHER – where application for consent to special health care – where approval sought for termination of pregnancy – where tribunal appoints the Public Guardian as representative to represent the views, wishes and interests of the adult – whether the adult has capacity to make a decision about special health care matters – whether the tribunal is satisfied the termination may be lawfully performed

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – OTHER – where application for consent to special health care – where approval sought for sterilisation procedure – where agreed that hearing of application for consent to sterilisation procedure could be reasonably postponed

Guardianship and Administration Act 2000 (Qld), s 11B, s 71, Sch 4

Human Rights Act 2019 (Qld), s, 13, s 15, s 17, s 20, s 21, s 25, s 31, s 48

Termination of Pregnancy Act 2018 (Qld), s 5

APPEARANCES & REPRESENTATION:

Adult:

Tony Wherritt (Public Guardian)

Amy Greenhaugh (social worker)

Applicants:

Dr Graeme Walker

Dr Simon Arnett

Dr Meng Tan

REASONS FOR DECISION

SENIOR MEMBER BROWNE: LKZ is a 28-year-old woman who is receiving urgent medical treatment under the care of the Gold Coast University Hospital following her admission on the 18^th of May 2023. LKZ is 10 weeks pregnant and has been diagnosed with anti-NMDA receptor encephalitis. Put simply, LKZ has brain inflammation caused by antibodies. Dr Graeme Walker, gynaecologist, filed two applications on 10 July 2023 for the Tribunal’s approval of a special healthcare matter.
Dr Walker seeks the Tribunal’s approval for LKZ to undergo a termination of pregnancy and Bilateral Salpingo-oophorectomy. That, if approved, would involve a surgical bilateral removal of ovaries and fallopian tubes resulting in premature menopause and infertility. The latter procedure is for the purposes of the Guardianship and Administration Act 2000 (Qld), sterilisation because it is healthcare that is intended or reasonably likely to make LKZ or ensure LKZ is permanently infertile. The proposed special healthcare matters, namely, termination procedure and sterilisation, are said to require the Tribunal’s approval because LKZ is unable to give her consent to the proposed procedures.
The Tribunal may consent for an adult with impaired capacity for the special healthcare matter concerned, to termination of the adult’s pregnancy only if the Tribunal is satisfied the termination may be performed by a medical practitioner under the Termination of Pregnancy Act 2018 (Qld). Relevantly, the purpose of that Act is to enable reasonable and safe access by women to terminations and to regulate the conduct of registered health practitioners in relation to terminations. Section 5 of the Act provides that a medical practitioner may perform a termination on a woman who is not more than 22 weeks pregnant.
On 17 July 2023, the Tribunal received relevant medical evidence in compliance with the Tribunal’s Amended Directions dated 11 July 2023 including information that an urgent hearing is required because LKZ is exposed to a potentially avoidable risk of a long-term disability. Further, the Tribunal was informed that as at 17 July 2023, LKZ experienced 15 seizures in a day and this was as a result of the diagnosed condition anti-NMDAr encephalitis. Further, if left untreated, will present an increased risk of long-term disability. The Tribunal, having accepted the information provided by Dr Simon Arnett, treating doctor and members of LKZ’s support network, was satisfied that it was necessary to abridge time for notice of the hearing because of the urgent or special circumstances, in order for the application for special health care to proceed today.
At the commencement of the hearing it was agreed to proceed with the application for termination procedure only and to list the application for sterilisation approval for a hearing on the 9^th of August 2023 commencing at 9.30 am.
A termination procedure is a special healthcare matter for the purpose of the Guardianship and Administration Act 2000 (Qld) and requires the Tribunal’s consent if we find that LKZ has impaired capacity for the special healthcare matter as provided under section 71.
As reflected in the general principles of the Act, LKZ is presumed to have capacity to make her own decisions about her health care matters, including whether to give her consent to the termination of pregnancy procedure. Capacity is defined under schedule 4 of the Act.
We accept the unchallenged medical evidence before us including the report of Dr Arnett and Amy Greenhalgh that LKZ is unable to understand the proposed termination due to her current condition. LKZ has more recently experienced seizures resulting in disorientation and confusion and is unable to engage in a discussion about her healthcare matters, including the termination procedure that will involve surgery and post-surgery treatment.
We are satisfied LKZ has impaired capacity for the termination procedure and is unable to make informed decisions about her special healthcare matters due to the diagnosed anti-NMDAr encephalitis. Termination requires a consideration of clinical factors including post-surgery recovery and monitoring. Relevantly, the procedure may be performed under the Termination of Pregnancy Act 2018 (Qld) by a medical practitioner. We accept the information provided at the hearing today by LKZ’s treating doctors that any risk of the procedure in this clinical setting is, on balance, little greater than the risk under normal circumstances.
It is readily apparent from the material before us that, subject to consent being given, LKZ’s treating medical team propose to undertake the termination procedure concurrently with another treatment referred to as an adjunct therapy, namely, IVIG (intravenous immunoglobulin). This involves a product being obtained from blood transfusion services being administered over three to five days. We are also satisfied that the termination will be performed by a medical practitioner.
As provided in chapter 2A section 11B of the Guardianship and Administration Act 2000 (Qld), LKZ’s inherent dignity and worth and equal and inalienable rights must be recognised and taken into account. LKZ has the same human rights and freedoms regardless of her particular capacity. These rights must be recognised and taken into account. Although LKZ is unable to tell us in her own words, her views and wishes about the proposed termination, we are satisfied on balance that LKZ would have consented to the proposed treatment plan, as reflected in the report of Amy Greenhalgh and reported to us today at the hearing by LKZ’s partner and her mother. The Tribunal gives its consent for the termination procedure to proceed as soon as is medically indicated.
We have also considered, in arriving at this decision, the relevant human rights, as set out in the Human Rights Act 2019 (Qld), as required by section 48. We must interpret statutory provisions to the extent possible, that is, consistent with their purpose in a way that is compatible with human rights. LKZ’s rights to recognition as a person before the law, entitled to equal protection without discrimination, freedom of movement, privacy, protection from inhuman and degrading treatment may all be engaged and limited by the making of these orders. Taking into account our findings about the criteria set out in the Guardianship and Administration Act 2000 (Qld) we are satisfied that the limits imposed by our orders are reasonable and justified in accordance with section 13 of the Human Rights Act 2019 (Qld). The orders made are the least restrictive based on the information before us.
So the decision of the Tribunal is, the Tribunal consents for LKZ to undergo a termination of pregnancy. This order remains current for a period of 10 days. The Tribunal directs that the time for compliance with directions numbered 2 to 8 inclusive of the Tribunal’s Amended Directions dated 11 July 2023 is waived on the basis that all material relevant to the applications for special health care, termination, and sterilisation have been provided to the Tribunal. The application for special health care sterilisation GAA8293-23 is listed for a further oral hearing before the Tribunal commencing at 9.30 am on the 9^th of August 2023. Any further material to be relied upon at the hearing must be filed in the Tribunal at least two days before the hearing. Graeme Walker must arrange for all health professionals who have authored reports to be relied upon in the hearing to be available to speak to the Tribunal at the hearing.