MZS (Consent to Special Medical Treatment)
[2019] TASGAB 40
•6 December 2019
FILE: | MZS (Consent to Special Medical Treatment) [2019] TASGAB 40 |
HEARING DATE(S): | 6 December 2019 |
DATE OF ORDERS: | 6 December 2019 |
DATE OF STATEMENT OF REASONS: | 23 December 2019 |
BOARD: | Ms R Holder, President Dr M Fasnacht, Member Mr C Lee, Member |
APPLICATION: | Consent for Special Medical Treatment |
CATCHWORDS: | Special treatment causing permanent infertility – whether the person has a disability and lacks capacity to give consent to the carrying out of the special treatment – whether the special treatment is in the person’s best interests – the consequences of the treatment not being carried out – any alternative treatment – the nature of any risks in carrying out the treatment |
LEGISLATION CITED: | Guardianship and Administration Act 1995 (Tas), ss 3, 6, 45 |
CASES CITED: | Secretary, Department of Health and Community Services v J.W.B. and S.M.B. (Marion’s Case) [1992] HCA 15 |
PUBLICATION RESTRICTION: | This decision has been anonymised for the purpose of publication |
Statement of Reasons
Application
The Applicant, Dr Jan Batt, made an Application for Consent to Medical Treatment in respect of MZS.
Hearing
The Board heard and determined the Application on 6 December 2019.
In attendance at the hearing were:
a.Dr Jan Batt, the Applicant;
b.MZS;
c.EXS, father;
d.HXS, mother; and
e.Ms Bianca Tonks, carer at Montague Community Living Inc.
At hearing, the Guardianship and Administration Board (the Board) had before it the following documents:
a.Application for Consent to Medical Treatment dated 12 November 2019;
b.Administration Order for MZS dated 28 June 2018;
c.Healthcare Professional Report (‘HCPR’) by Dr Jan Batt (Applicant) dated 18 November 2019;
d.Medical Report from Clinical Associate Professor Robyn Wallace to Dr Rohan Kerr dated 18 June 2019;
e.Medical Report from Clinical Associate Professor Robyn Wallace to Dr Rohan Kerr dated 11 July 2019;
f.Medical Report from Dr Mathew Wallis to Clinical Associate Professor Robyn Wallace dated 7 November 2019;
g.Medical Report from Clinical Associate Professor Robyn Wallace to Dr Stephen Bradford dated 12 November 2019;
h.Medical Report from Clinical Associate Professor Robyn Wallace to Dr Rohan Kerr dated 21 November 2019;
i.National Disability Insurance Scheme (NDIS) Plan for MZS dated 10 April 2019; and
j.Care Plan for MZS authored by Montague Community Living Inc.
Background
MZS is a 41 year old woman residing with 2 other women in custom built accommodation supported by Montague Community Living Inc. She has supportive parents, whom she sees frequently. MZS enjoys a home based one-on-one day support program from Life Without Barriers 5 days a week, which is funded by NDIS.
The Board has produced this Statement of Reasons of its own motion, rather than at the request of a party to the proceedings.
Legislation
The Guardianship and Administration Act 1995 (the Act) defines ‘special treatment’ in section 3 as including:
(a)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;
Part 6 of the Act, section 45 provides as follows:
(1) On hearing an application for its consent to the carrying out of medical or dental treatment the Board may consent to the carrying out of the medical or dental treatment if it is satisfied that –
(a) the medical or dental treatment is otherwise lawful; and
(b) that person is incapable of giving consent; and
(c) the medical or dental treatment would be in the best interests of that person.
(2) For the purposes of determining whether any medical or dental treatment would be in the best interests of a person to whom this Part applies, matters to be taken into account by the Board include –
(a) the wishes of that person, so far as they can be ascertained; and
(b) the consequences to that person if the proposed treatment is not carried out; and
(c) any alternative treatment available to that person; and
(d) whether the proposed treatment can be postponed on the ground that better treatment may become available and whether that person is likely to become capable of consenting to the treatment; and
…
(f) any other matters prescribed by the regulations.
The Board must also balance the principles in section 6 of the Act for every function or power conferred on it by the Act, and these are:
(a)the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; and
(b)the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and
(c)the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect.
Evidence and Findings
The Applicant is MZS’s treating gynaecologist, and for this reason is determined to have a proper interest in the matter.
The proposed medical treatment is a laparoscopic total hysterectomy and salpingectomy under general anaesthetic, which is lawful treatment. This procedure does not affect the ovaries. The proposed treatment has the effect of causing MZS to become permanently infertile, and therefore is ‘special treatment’.
Disability is defined in section 3 of the Act. The medical evidence from Clinical Associate Professor Robyn Wallace states MZS has cerebral palsy affecting all four limbs and of the spasticity variety, intellectual disability, scoliosis, epilepsy and satisfies some of the criteria for autistic spectrum disorder. The diagnosis was not in dispute at hearing. It is apparent from Clinical Associate Professor Robyn Wallace’s report that MZS is incapable of understanding the general nature and effect of the proposed treatment. Her communication is limited to sounds and body movements. The report states that “MZS is unable to provide consent for the operation due to her severe intellectual disability”.
The Applicant in her HCPR confirmed a diagnosis of spastic quadriplegia since birth, and autism, and noted these disabilities are deteriorating. She stated she was unable to get MZS’s views as to the proposed medical treatment as she was ‘unable to communicate with her.’ Based on the medical evidence provided in reports and at hearing and the concurring views of MZS’s parents, the Board finds MZS has a disability, and because of her disability is not capable of consenting to the proposed treatment now or in the future.
The Act prescribes that only the Board can authorise special treatment for a person who is incapable of giving consent to medical treatment. It is beyond the power of a person responsible or a Guardian to consent to special treatment.
MZS’s views and wishes as to the proposed treatment are not ascertainable given her disability. She attended the hearing, but was not able to participate in it.
The Applicant indicated that the basis of the Application is that MZS suffers menorrhagia, that is abnormally heavy periods and dysmenorrhoea, significant pain from her period every month.
The Applicant gave a history that MZS while in her 30’s had been prescribed an oral contraceptive pill due to menorrhagia. MZS then lost weight, (her weight falling below 40 kilograms) and she became amenorrhoeic. After a Peg tube insertion to facilitate nutrition, MZS gained weight and after approximately 2 years from when they ceased, her periods returned.
From this time on, the Applicant reported that MZS has experienced menorrhagia. Her periods over the last 12 months have increased in duration, that is, lasting up to 2 weeks and she is experiencing at least 6-8 days of very heavy bleeding and clotting, sometimes even ‘flooding’ resulting in her needing pad changes up to every 2 hours. MZS is also experiencing dysmenorrhoea. The evidence at hearing indicated MZS has increasingly over the last 12 months shown signs of becoming more irritated and upset at the time of her period, and has demonstrated she is experiencing pain by her crying, or screaming at a high pitch, grinding of her teeth which while not unusual, increases at this time, ceasing to eat, not wanting to leave her house, and preferring to remain in the privacy of her bedroom. Evidence was heard that MZS’s response to carers when they try to attend to her hygiene during periods indicated that she was suffering intense pain, this response is described below. The Applicant reported that analgesia is provided to MZS when she is in pain but this does not always have effect, and MZS continues to exhibit significant distress.
The Board heard evidence that MZS is unable to manage her personal hygiene independently. MZS is totally dependent on her carers in managing her periods. The Applicant and Ms Tonks gave evidence to the effect that MZS tries to push her carers away and fights against them by putting her legs up to her stomach in a fetal like position, when they are attempting to attend to her personal hygiene. Ms Tonks indicated this becomes a very challenging task and requires carers putting pressure on MZS’s legs for her to release them. Ms Tonks’ evidence painted a distressing picture of MZS being highly upset, crying and screaming during this process and carers and family also finding the process equally distressing. MZS has been unable to leave her home during her periods, because her screaming and agitation prevent any dignified access to the broader community. Once her period ceases her parents and Ms Tonks report that MZS returns to ‘her happy self’ and enjoys contact with her family and carers, swimming, and accessing the community.
The Applicant went through in both her Application and her oral evidence her reasons why the usual conservative measures to control MZS’s menstruation would not be appropriate. The Applicant expressed concern that the use of the oral contraceptive over time may cause blood clotting, the risk of which increases with age. The oral contraceptive also does not prevent menorrhagia or dysmenorrhoea. The Applicant did not believe endometrial ablation, and insertion of a Mirena (intrauterine contraceptive device) would produce a successful outcome. The Applicant stated both treatments have a one in four chance of stopping bleeding in the menstrual cycle, and for the remaining three women it may cause lighter periods which are often irregular and unpredictable. The Applicant opined that there is a probable likelihood MZS would still have some bleeding after these treatments and therefore would still have pain. The Applicant stated these treatments would not guarantee a reduction in the pain she is experiencing, and was clear that they would be less likely to treat MZS’s pain, than the proposed treatment.
The Applicant also indicated there was a reasonable possibility of MZS having adenomyosis which she indicated was not uncommon for women in their forties and which results in painful periods and longer bleeding. The Applicant stated that if MZS had adenomyosis, it would be difficult to control her pain by less invasive treatment methods. The Applicant also commented that there was a reasonable possibility that MZS has endometriosis given the pain she is experiencing and the maternal family history of this. The Applicant stated that in May 2019 she attempted to examine MZS who pulled up her legs and would not allow this to occur. Consequently MZS has not had a recent trans-abdominal ultrasound because she is not allowing the Applicant or other doctors to examine her. The Applicant said in some situations she would proceed to a hysteroscopy, however not in this matter, as such an exploratory procedure would be invasive for MZS requiring general anesthetic and time in hospital and may not reveal anything but provide clinical information such as whether there are fibroids or polyps and most certainly would not cease the menorrhagia or dysmenorrhoea. Based on this evidence from the Applicant, the Board accepts that there is no alternative appropriate treatment available to MZS.
The Applicant expressed concern that over a long period of time it was inevitable that MZS would become iron deficient and possibly anaemic, as a consequence of the ongoing heavy bleeding. The Applicant also emphasised that the dysmenorrhoea and the menorrhagia will not improve, but get worse as MZS moves through the peri-menopausal stage. The Board gives weight to this evidence which addresses the consequences of not proceeding with the proposed treatment.
The Applicant gave evidence that there were no new medical procedures or alternative treatment that she was aware of that may become available in the future.
The Board must give consideration as to what the risks are in carrying out the proposed treatment. The Applicant gave evidence that the proposed treatment requires a general anesthetic and there is a risk that MZS may have a reaction to the anesthetic. Evidence at hearing from the Applicant and MZS’s parents indicated that MZS had had a number of procedures under general anesthetic in the past without adverse reaction. The Applicant explained that salpingectomy by laparoscopy also carries a possible risk of injury to the bladder, ureters, and bowel during the course of the procedure. After surgery there is a low risk of blood clots. Hospitalisation with unfamiliar faces and surroundings will also bring its challenges for MZS, however the Board heard evidence that caregivers and family would be with her through the day and night if the treatment is to proceed. The Applicant also raised that the treatment would render MZS infertile. MZS’s parents indicated that MZS has never been sexually active and would be extremely unlikely to want to participate in sexual relations, and indicated that because of her physical disabilities this would be quite difficult for her.
The Board finds that the treatment would be an invasive procedure, and has some identified risks. It would permanently deprive MZS of her fertility. The High Court, in a landmark decision referred to as Marion’s Case,[1] considered whether parents could make the decision about the sterilisation of a child under 18 with intellectual disability. The majority held that the decision was one of such gravity and significance that it must always be made by a court. This case, though about children not adults with cognitive impairment, set out some profoundly important principles. These principles are applicable to decisions about the sterilisation of adults with cognitive impairment. Chief Justice Mason and Justices Dawson, Toohey and Gaudron commented that:
The function of a court when asked to authorize sterilisation is to decide whether in the circumstances of the case, that is in the best interests of the child. We have already said that it is not possible to formulate a rule which will identify cases where sterilisation is in his or her best interests. But is should be emphasized that the issue is not at large. Sterilisation is a step of last resort. And that, in itself, identifies the issue as one within narrow confines.
In the context of medical management ‘step of last resort’ is a convenient way of saying that alternative and less invasive procedures have all failed and it is certain that no other procedure or treatment will work…And if authorization is given, it will not be on an account of the convenience of sterilisation as a contraceptive measure, but because it is necessary to enable her to lead a life in keeping with needs and capabilities.[2]
[1] Secretary, Department of Health and Community Services v J.W.B. and S.M.B. (Marion’s Case) [1992] HCA 15
[2] Ibid, [73-74].
Justice Brennan in Marion’s Case stated that:
Sterilisation of an intellectually disabled child requires justification of a compelling kind, for involuntary sterilisation is a serious invasion of that child’s personal integrity and a grave impairment of that child’s human dignity.[3]
[3] Ibid, [7].
The High Court’s principles set out in Marion’s Case and the principles of the Act lead the Board to recognise that sterilisation of a woman with an intellectual disability requires justification of the most compelling type and should be seen as a “last resort.” The Board must be satisfied that there is no less restrictive alternative and such treatment is in the best interests of MZS.
On the evidence available to it, the Board was satisfied that the proposed treatment is for a compelling medical reason and will result in the elimination of the significant and at times incapacitating pain MZS is currently suffering. The Board is satisfied the proposed treatment is in the best interests of MZS and will improve her quality of life. MZS has the right to enjoy life to the full and to access the community and engage with others. Every month MZS’s autonomy is restricted by her condition. The Board also accepts her menstruation and the conditions that arise from them is a source of serious distress to her, which impacts on her psychological health and wellbeing. The Board is satisfied these conditions will continue, and most probably get worse over the next number of years without the proposed treatment. The Board has weighed the risks of the proposed treatment as articulated by the Applicant against not preceding with the treatment and accepts that the benefits for MZS of proceeding with the treatment outweigh the potential risks. The Board accepts the medical evidence of the Applicant that there is no benefit in postponing treatment given that better treatment is unlikely to become available, and further, that MZS’s condition is likely to get worse.
THE BOARD hereby consents:
To treatment for MZS comprising of a laparoscopic total hysterectomy and salpingectomy, but not oophorectomy.
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