LZH

[2022] NSWCATGD 15

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

LZH [2022] NSWCATGD 15

Hearing dates:

2 June 2022

Date of orders:

2 June 2022

Decision date:

02 June 2022

Jurisdiction:

Guardianship Division

Before:

R H Booby, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
F N Given, General Member (Community)

Decision:

The Tribunal consents to the following special medical treatment being provided to LZH: removal of Mirena IUD and endometrial ablation under a general anaesthetic 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 12 month(s) from the date of this order.

Catchwords:

CONSENT TO MEDICAL TREATMENT – application for consent to special medical treatment – removal of Mirena IUD and endometrial ablation – 41-year-old woman – intellectual disability – patient not able to understand the general nature and effects of the treatment – patient not able to provide informed consent – procedure will likely result in permanent infertility – whether treatment is the most appropriate form to promote health and wellbeing – whether proposed treatment is necessary to save patient’s life or prevent serious damage to health – consent given.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 33(1)–(2), 36(1)(b), 42, 44, 45(2)

Cases Cited:

None cited.

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

002: Consent to Special Medical Treatment

LZH (the person)
KAL (applicant)
EMP (applicant)
FYD (carer)

Representation:

M Falloon as separate representative for LZH

File Number(s):

NCAT 2022/00140554

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. LZH is 41 years old and lives with her mother, FYD, in the eastern suburbs of Sydney, NSW.

2. The Tribunal received an application from KAL seeking consent to medical treatment for LZH. The treatment for which consent is sought is the removal of a Mirena IUD and endometrial ablation.

3. Ms Mary Falloon participated in the hearing as the separate representative of LZH.

WHAT MUST BE PROVED?

4. If a person is incapable of giving informed consent to special medical treatment, then only the Tribunal may provide consent: Guardianship Act 1987 (NSW), s 36(1)(b). Such treatment is defined in s 33(1) of the Guardianship Act 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”

5. Under s 33(2) of the Guardianship Act, a person is incapable of giving consent to the carrying out of medical treatment if the person

1. is incapable of understanding the general nature and effect of the proposed treatment, or

2. is incapable of indicating whether or not he or she consents or does not consent to the treatment being carried out.

6. The Guardianship Act requires that the Tribunal must not give consent to the carrying out of special treatment unless it is satisfied that the treatment is necessary to (a) save the patient's life or (b) to prevent serious damage to the patient's health: Guardianship Act, s 45(2).

7. The Guardianship Act imposes a further consideration on the Tribunal in s 44 of that Act. That section directs that if consent is to be given to medical or dental treatment, the Tribunal must be satisfied that it is “appropriate for the treatment to be carried out” and must have regard to the views of the patient, the person who is proposing that medical treatment be carried out on the patient and any persons responsible for the patient.

8. The Tribunal must also take into account matters set out in s 42 of the Guardianship Act which are:

1. the grounds on which it is alleged that the patient is a patient to whom this Part applies,

2. the particular condition of the patient that requires treatment,

3. the alternative courses of treatment that are available in relation to that condition,

4. the general nature and effect of each of those courses of treatment,

5. the nature and degree of the significant risks (if any) associated with each of those courses of treatment, and

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

9. In summary, therefore, the issues for determination by the Tribunal were as follows:

1. Is the treatment proposed by the applicant “special medical treatment”?

2. Is LZH incapable of giving consent to the proposed special treatment?

3. Is the treatment necessary to save LZH’s life or is the treatment necessary to prevent serious damage to LZH’s health?

4. Is the proposed special treatment the most appropriate form of treatment for promoting and maintaining LZH’s health and wellbeing?

Is the proposed treatment 'special treatment'?

10. EMP, a consultant gynaecologist, said that whilst an endometrial ablation does not remove fertility, from a functional perspective it has that effect.

11. The Tribunal was satisfied that the proposed endometrial ablation is reasonably likely to render LZH permanently infertile and that it is special medical treatment as defined in the Guardianship Act.

Is LZH incapable of providing consent to the proposed treatment?

12. Section 33(2) of the Guardianship Act provides that a person is incapable of giving or withholding consent to medical or dental treatment if the person:

1. is incapable of understanding the general nature and effect of the proposed treatment, or

2. is incapable of indicating whether or not he or she consents or does not consent to the treatment being carried out.

13. We were provided with copies of letters from the Centre for Clinical Genetics of a children’s hospital indicating that LZH has a chromosomal condition including deletion of the CASK gene with resultant intellectual disability. She also had post-natal microencephaly and has experienced retardation in her development, loss of purposeful hand movements, absence seizures and some changes in EEG and some neurological signs. Additional correspondence from a physiotherapist and speech therapist referred to LZH’s diagnosis and functional and intellectual disabilities resulting from that condition. We were also provided with a report from Guide Dogs NSW that indicates that LZH has a visual impairment.

14. In a report from an occupational therapist indicates the following:

1. LZH was not able to engage in reciprocal communication.

2. LZH demonstrated significant impairment in the areas of attention, planning and perception.

3. LZH engages in verbal and physical aggression including hitting, yelling and self-harm in the context of distress.

15. In a letter to the Tribunal dated 28 March 2022, Dr Z, a GP at a medical centre in East Sydney, indicates that LZH has been her patient since September 1999. She can comprehend language, but has difficulty with complex concepts.

16. LZH attended the hearing and her presentation was consistent with her having an intellectual disability. She was not able to provide a view about the proposed treatment.

17. Ms Falloon was of the view that LZH was not able to provide informed consent to the treatment.

18. We accepted and placed weight on the evidence of the health and medical practitioners as that of practitioners with appropriate qualifications and adequate knowledge of LZH to provide a view as to her decision-making capacity.

19. Taking into account the views of the health and medical practitioners and LZH’s presentation, we were satisfied that she is not able to fully understand the nature and effect of the treatment.

What is the particular condition of the patient that requires treatment?

20. In the application KAL indicates that LZH has heavy menstrual bleeding for which no structural cause can be found. The bleeding has significant impact on her quality of life and she has required iron transfusions because of the bleeding.

21. In a letter dated 17 September 2021, Dr Y, senior resident medical officer for Dr X, of the Gynaecology Clinic at a specialist hospital, provides the following information:

1. Since she was aged 13, LZH has had regular but heavy periods. In 2018 she experienced anaemia due to menorrhagia and had a Mirena inserted. She experienced spotting for six months and then had 18 months of regular and lighter periods. However in 2021 she had constant bleeding with additional heavy periods.

2. At the time of writing, LZH was not showing symptoms of anaemia.

3. LZH’s Mirena had not been successful in managing her menorrhagia and removal of the Mirena was recommended as was an endometrial ablation.

22. EMP provided the following additional information:

1. LZH has been subject to abnormal bleeding since she was 18 years old and has undergone a number of assessments of her condition and alternative treatments for the condition.

2. In 2018 LZH had a hysteroscopy to exclude other causes for the bleeding. If consent was provided for the treatment, there could be a further hysteroscopy and biopsy conducted to check for fibroids or ovarian pathology. If consent were not given, those procedures would be conducted under an anaesthetic along with the removal of the Mirena that was thought to be causing some pain. The removal of the Mirena was likely to result in a resumption of the heavy bleeding.

3. Currently LZH’s bleeding was “spotting” only, but she was previously subject to heavy bleeding requiring three pad changes per day. The current spotting is continuous.

4. LZH’s haemoglobin count was normal in September 2021, but had not been normal previously. Since September 2021, LZH has been bleeding every day and EMP has requested a repeat blood screen for LZH.

What are the alternative options for treatment that are available?

23. EMP indicated that a number of alternative treatments have been tried. These have included treatment with the combined oral contraceptive pill, progesterone only contraceptives and the Mirena. The continuous use of the contraceptive pill was initially effective but became less effective over time. The use of the progesterone only treatment resulted in significant mood symptoms. The Mirena device had resulted in a reduction of the volume of bleeding but had not prevented daily bleeding.

24. EMP also spoke of health risks in continuous use of the oral contraceptive in women aged in their 40s and said that for those women, the progesterone only treatments were to be preferred. She said that the side effects of high doses of progesterone include bloating, breast tenderness and mood changes and that she considers such treatment to only be appropriate for short periods.

25. EMP also advised that an endometrial ablation has an 80% success rate at eradicating or significantly reducing heavy bleeding.

Why is it proposed that the treatment should be carried out?

26. KAL and EMP indicate that treatment is proposed to prevent the menstrual bleeding and the associated anaemia.

Are there any risks associated with the proposed treatment?

27. In the application KAL indicates that the risks include those associated with a general anaesthetic as well as risk of bleeding, infection and, rarely, perforation of the uterus and damage to surrounding organs.

28. We are satisfied that the risks of the procedure are not greater than is reasonable having regard to the effects on LZH and on her life and lifestyle of the heavy and frequent menstrual bleeding.

Is the proposed treatment the most appropriate treatment?

29. Taking into account the evidence of previous failed attempts to intervene in LZH’s menstrual cycle by methods less invasive than an endometrial ablation, we are satisfied that the proposed endometrial ablation is the most appropriate treatment.

How will the proposed treatment promote and maintain the patient's health and wellbeing?

30. EMP was of the view that ongoing treatment for an iron deficiency presents constipation problems for LZH and there is need to treat the constipation. She said that under current circumstances it is necessary to try to balance the need for iron supplementation against the constipation effects. She said that iron infusions are traumatic experiences for LZH as it is difficult to access her veins and she needs to remain still during the transfusion.

31. EMP also spoke about the effect of the constant bleeding on LZH’s lifestyle, including that she is unable to swim for recreation and is not able to participate in all-day outings without a carer who can assist with her bleeding.

32. FYD said that the reason LZH was not anaemic in September 2021 was because she was taking iron supplements. These have a constipating effect for which medication needs to be given. However due to symptoms of LZH’s condition, including dysphagia, the administration of medication was difficult. By way of example, she said that when eating LZH needs three attempts to swallow food, and her Epilim, necessary to treat her seizures, is given in syrup to assist in swallowing. She also said that LZH has axial hypotonia that affects her digestive tract and that progesterone can weaken connective tissue. As a result her constipation is worsened. She also indicated that LZH is prone to urinary tract infections as a result of wearing sanitary pads all day, and is tired and has headaches as a result of the constant bleeding.

33. FYD also said that many people with the CASK condition are wheelchair bound and that LZH is prescribed two sessions per week of exercises to improve her core strength. Her anaemia and tiredness jeopardise her exercise regimen.

34. We are satisfied on the evidence of EMP and FYD that the effects of continuous and sometimes heavy bleeding have substantial detrimental impacts on LZH’s health and lifestyle. We are of the view that addressing these matters will assist to reduce the adverse effects on LZH and will promote her health and wellbeing.

Is the proposed treatment necessary to save the patient's life or prevent serious damage to health?

35. Ms Falloon indicated that taking into account that LZH has had decades of problem menstruation with a number of unsuccessful treatment attempts, she was of the view that the treatment is necessary to prevent serious damage to LZH’s health.

36. We are satisfied that the constant and sometimes heavy bleeding constitute serious damage to LZH’s physical, psychological and emotional health.

37. In the absence of suitable alternative treatments, we are satisfied that the proposed treatment is necessary to prevent serious damage to LZH’s health.

Conclusion

38. Taking into account all of the matters set out above we consented to the proposed removal of the Mirena IUD and endometrial ablation under a general anaesthetic and any necessary treatment that would normally be provided in association with or directly consequent upon the above treatment.

39. This consent is effective for a period of 12 month(s) from the date of this order.

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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: 17 November 2022