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

1. 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').

1. The proposed special medical treatment was hysterectomy with ovarian conservation.

What the Tribunal decided

1. 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

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

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

1. 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?

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

1. 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

1. 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.

1. Miss MMW's stepfather, Mr PFT, informed an officer of the Tribunal Registry that he would not be able to participate in the hearing, because of his own ill health. However, Mr PFT informed the Registry officer that he is aware of the difficulties that Miss MMW has been experiencing. Mr PFT said that he trusts Miss MMW's doctors, and he supports the proposed treatment.

Is Miss MMW able to consent to the proposed special medical treatment?

1. A person is incapable of giving consent to the carrying out of medical or dental treatment if he or she is:

• incapable of understanding the general nature and effect of the proposed treatment; or
• incapable of indicating whether or not he or she consents, or does not consent, to the proposed treatment being carried out (sub-s 33(2), Guardianship Act).

1. Dr Z, Gynaecologist, advised in a report prepared on 9 July 2014 that Miss MMW experiences menorrhagia. Although Miss MMW had been experiencing very heavy periods on the contraceptive pill, she continues to have very long, heavy and painful periods when she is no longer on the contraceptive pill.

1. Miss MMW has a 7 cm submucosal fibroid. Dr Z stated that Miss MMW's submucosal fibroid is too large to resect hysteroscopically. Given that the submucosal fibroid is causing prolonged, heavy and painful periods, Dr Z recommended a hysterectomy with ovarian conservation.

1. Dr Y, Miss MMW's general practitioner, confirmed in a report prepared on 18 July 2014 that Miss MMW experiences prolonged, heavy and painful periods. Miss MMW had informed Dr Y that she cannot handle her menstrual periods anymore.

1. Ms X, a Clinician, advised in a report prepared on 25 September 2014 that Miss MMW appears to be in great pain, and has been extremely embarrassed when she has experienced leakage when she is menstruating. Ms X stated that Miss MMW is very clear that she does not like having her periods, because of the associated pain and discomfort.

1. In a more recent report prepared on 20 October 2014, Ms X reported that Miss MMW now has a clearer understanding of the proposed operation, the procedure, and the recovery time and expectations. Ms X believes that Miss MMW has the capacity to understand and consent to having a hysterectomy with ovarian conservation.

1. In the early stages of the hearing the Senior Member (Professional) of the Tribunal explained to Miss MMW the purpose of the application, and the nature of a hysterectomy.

1. Miss MMW confirmed that she has been experiencing problems with her periods, and that the contraceptive pill did not help. Miss MMW also confirmed her understanding that the proposed treatment would involve removing her uterus during the course of an operation in Hospital. She said that, after the surgery, she would return home, and her periods would stop. Miss MMW added that "that will be good". Miss MMW specifically confirmed that she does not want to have children, and she said that she had no questions to ask of the Tribunal during the hearing.

1. Dr Z gave evidence during the hearing that Miss MMW does understand the nature of the proposed treatment. Dr Z was confident that Miss MMW is capable of providing her own consent for that treatment.

1. Miss MMW's separate representative advised that Miss MMW is capable of providing consent for the proposed special medical treatment. The separate representative reported that Miss MMW had been able to tell her why she wanted to have procedure.

1. The Tribunal accepted the written evidence of Ms X, the oral evidence of Dr Z, the thoughtful advice of the separate representative and Miss MMW's own clearly expressed views. The Tribunal was satisfied that Miss MMW:

• is capable of understanding the general nature and effect of the proposed hysterectomy with ovarian conservation;
• is capable of indicating whether or not she consents, or does not consent, to the proposed treatment being carried out;
• is capable of giving consent to the proposed special treatment; and
• has indicated that she does consent to the proposed treatment being carried out.

Consent refused

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

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: 07 November 2014