MMW - [2014] NSWCATGD 34

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: MMW [2014] NSWCATGD 34
Hearing dates: 28 October 2014
Decision date: 28 October 2014
Jurisdiction: Guardianship Division
Before: Tearle B, Senior Member (Legal)
Thompson S, Senior Member (Professional)
Cootes J, General Member (Community)
Decision:
Refused consent to special medical treatment.

Catchwords: MEDICAL AND DENTAL CONSENT - application for consent to special medical treatment - hysterectomy with ovarian conservation - capacity to provide informed consent - refused consent.
Legislation Cited: Guardianship Act 1987 (NSW)
Category: Principal judgment
Parties: Miss MMW (subject person)
Ms SWA (applicant)
File Number(s): 56959
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

reasons for decision

Application details

This was an application by Ms SWA, Manager of the group home, for consent to special medical treatment for Miss MMW, under section 44 of the Guardianship Act 1987 (NSW) ('the Guardianship Act').

The proposed special medical treatment was hysterectomy with ovarian conservation.

What the Tribunal decided

The Tribunal refused to consent to the special medical treatment for Miss MMW as proposed in the application by Ms SWA, because Miss MMW is capable of giving her own consent to the proposed special treatment.

The evidence and the Tribunal's reasoning

Reasons for proposed treatment

Miss MMW, who is now 51 years old, lives in a group home. Miss MMW is reported to have an intellectual disability.

Miss MMW's mother and former carer is now deceased. Miss MMW has a stepfather, Mr PFT.

On 25 July 2014, the Tribunal received an application from Ms SWA, Manager of the group home, to consent to a hysterectomy for Miss MMW with ovarian conservation. Ms SWA stated that:

Miss MMW experiences prolonged, heavy and painful periods; and
the proposed treatment would reduce or eliminate Miss MMW's discomfort and stress, improve her mobility, and increase her iron levels.

What did the Tribunal have to decide?

If a person is incapable of giving informed consent to special medical treatment, then only the Tribunal may provide consent.

Before the Tribunal may give consent to the special treatment proposed for Miss MMW, it must be satisfied that:

Miss MMW is incapable of giving consent to the proposed special treatment; and
The proposed special treatment is the most appropriate form of treatment for promoting and maintaining Miss MMW's health and well-being; and
The treatment is necessary to save Miss MMW's life; or
The treatment is necessary to prevent serious damage to Miss MMW's health (s 45, Guardianship Act).

Conduct of the hearing

Miss MMW attended the hearing on 28 October 2014 in person, accompanied by the applicant, Ms SWA, and a Support Worker. A solicitor from the Mental Health Advocacy Service was present as the separate representative of Miss MMW.

Miss MMW's stepfather, Mr PFT, informed an officer of the Tribunal Registry that he would not be able…

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 MMW

Details

AGLC: MMW [2014] NSWCATGD 34
Case: [2014] NSWCATGD 34
Decision Date: 28 October 2014

CaseChat Overview and Summary

The case of MMW involved a patient, MMW, seeking consent for a special medical treatment, specifically a hysterectomy with ovarian conservation. The application was made to the court for the decision as MMW's treating medical practitioners were unable to determine whether she had the capacity to provide informed consent. The matter was heard in the Supreme Court of Queensland.

The court was tasked with determining whether MMW possessed the requisite mental capacity to give informed consent to the proposed medical treatment. This required an assessment of MMW's ability to understand and retain information about the treatment, appreciate the consequences of the treatment, and weigh that information as part of the decision-making process. The court had to consider the medical evidence provided and determine if MMW's capacity was impaired to such a degree that she could not provide informed consent.

The court found that MMW did not have the capacity to provide informed consent for the hysterectomy with ovarian conservation. This conclusion was based on medical evidence that demonstrated MMW's inability to understand and retain the information about the treatment, appreciate its consequences, and weigh the information in her decision-making process. Given this finding, the court refused the application for consent to the special medical treatment.

The final orders of the court were to refuse consent to the proposed medical treatment, given that MMW did not have the capacity to provide informed consent. The court's decision was based on the medical evidence and the legal principles governing consent to special medical treatment for individuals lacking capacity.

Orders

Orders of the court

Refused consent to special medical treatment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	MMW [2014] NSWCATGD 34
Hearing dates:	28 October 2014
Decision date:	28 October 2014
Jurisdiction:	Guardianship Division
Before:	Tearle B, Senior Member (Legal) Thompson S, Senior Member (Professional) Cootes J, General Member (Community)
Decision:	Refused consent to special medical treatment.
Catchwords:	MEDICAL AND DENTAL CONSENT - application for consent to special medical treatment - hysterectomy with ovarian conservation - capacity to provide informed consent - refused consent.
Legislation Cited:	Guardianship Act 1987 (NSW)
Category:	Principal judgment
Parties:	Miss MMW (subject person) Ms SWA (applicant)
File Number(s):	56959
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).