NKI

[2015] NSWCATGD 59

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

NKI [2015] NSWCATGD 59

Hearing dates:

15 December 2015

Date of orders:

15 December 2015

Decision date:

15 December 2015

Jurisdiction:

Guardianship Division

Before:

J Redfern, Principal Member
Dr M Wroth, Senior Member (Professional)
J Koussa, General Member (Community)

Decision:

The Tribunal consents to the following special medical treatment being provided to Miss NKI at the hospital:

1. Total or subtotal abdominal hysterectomy; and
2. Bilateral salpingectomy; and
3. Any of the following if clinically necessary:
    a) ovarian biopsy;
    b) ovarian cystectomy;
    c) unilateral or bilateral oophorectomy.
4. General anaesthesia for the above procedures.
5. 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 six months from the date of this order.

Catchwords:

SPECIAL MEDICAL TREATMENT – Application for consent to special medical treatment – abdominal hysterectomy and bilateral salpingectomy – 26-year-old woman – severe intellectual disability – alternative treatment has failed, or is not likely to be effective or suitable – whether the treatment is the most appropriate form of treatment to promote and maintain health and well-being – whether treatment is necessary to prevent serious damage to health – consent given

Legislation Cited:

Guardianship Act 1987 (NSW), ss 32, 33A, 33(1), 33(1)(a), 33(1)(b), 33(2), 33(2)(a), 33(2)(b), 34(1), 36(1)(a), 36(1)(b), 42(1), 42(2), 44, 44(1), 44(2), 44(2)(a), 44(2)(b), 44(2)(c), 45, 45(1), 45(2), 45(3), 45(3)(b), Pt 5
Guardianship Regulations 2010 (NSW), regs 9, 10

Category:

Principal judgment

Parties:

Ms NKI (the person who was the subject of the application)
Dr UDV (applicant)

Representation:

Separate Representation:
N Danis (subject person)

File Number(s):

60919

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

What the Tribunal Decided

1. The Tribunal consented to special treatment for Ms NKI in the terms set out in the order made on 15 December 2015.

Background

2. Ms NKI is a 26-year-old woman who lives with her parents, Mrs KBI and Mr EYI, in their home on the northern beaches. Mrs KBI is Ms NKI's primary carer. Ms NKI is reported to have severe intellectual disability and epilepsy as well as physical disability. She is non-verbal, save for single-syllable words.

3. On 13 November 2015, the Tribunal received an application from Dr UDV, gynaecologist, for consent to a special treatment for Ms NKI. Dr UDV is a staff specialist at two public hospitals and Director of Women's, Children, and Family Health at a public health service. In her application, Dr UDV requested consent to perform a total abdominal hysterectomy and bilateral salpingectomy (being the surgical removal of the fallopian tubes) to address Ms NKI’s severe menorrhagia (heavy menstrual bleeding).

4. On 26 November 2015, the Tribunal made an order appointing a separate representative for Ms NKI. Ms Nihal Danis was appointed.

The hearing

5. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.] Dr UDV, Ms NKI, Mrs KBI, and Ms Danis attended the hearing. Ms NKI’s sister attended part of the hearing. She did not give evidence. Mr EYI was working overseas and was not able to attend.

What did the Tribunal have to consider?

6. This was an application for consent to special treatment. The application was made under Part 5 of the Guardianship Act1987 (NSW) (the Act). Part 5 of the Act sets out a legislative regime for consent to medical and dental treatment, including the approval of clinical trials, for people who lack capacity to consent to treatment.

7. The objects of Part 5 are contained in s 32 as follows:

32 Objects

The objects of this Part are:

(a)   to ensure that people are not deprived of necessary medical or dental treatment merely because they lack the capacity to consent to the carrying out of such treatment, and

(b)   to ensure that any medical or dental treatment that is carried out on such people is carried out for the purpose of promoting and maintaining their health and well-being.

8. Part 5 applies to a person who is 16 years or above and who is “incapable of giving consent to the carrying out of medical or dental treatment” (s 34(1)). Such incapacity is defined in s 33(2) as being where the person:

(a)   is incapable of understanding the general nature and effect of the proposed treatment, or

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

9. A person responsible, as defined in s 33A of the Act, may give consent to minor and major treatment but not special treatment (refer s 36(1)(a)). As such, if a person is incapable of giving informed consent to special treatment only the Tribunal may provide consent (refer s 36(1)(b)). Such treatment is defined in s 33(1) of the Act as follows:

(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, or

(b)   any new treatment that has not yet gained the support of a substantial number of medical practitioners or dentists specialising in the area of practice concerned, or

(c)   any other kind of treatment declared by the regulations to be special treatment for the purposes of this Part,

but does not include treatment in the course of a clinical trial.

10. Regulation 9 of the Guardianship Regulations 2010 (NSW) provides that certain treatment is declared to be “special treatment”, for the purposes of paragraph (c) of the definition of “special treatment” in s 33(1) of the Act. Regulation 10 also prescribes certain treatment as special treatment for the purposes of s 45(3)(b). Neither of those provisions are relevant to this application but have been included for completeness.

11. Any person may apply to the Tribunal for consent to the carrying out of medical or dental treatment on a patient to which Part 5 applies (s 42(1)) and such application must specify the matters as outlined in s 42(2) as follows:

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.

12. Sections 44 and 45 of the Act set out the jurisdictional basis for the Tribunal to give or withhold consent to medical and dental treatment, including special treatment. The exercise of the function is discretionary.

13. Section 44 provides that before the Tribunal can give consent to medical treatment, which includes special treatment, the Tribunal must be satisfied that it is "appropriate for the treatment to be carried out". In considering such applications, the Tribunal must have regard to the views of the patient, the person who is proposing that the medical treatment be carried out on the patient, and any persons responsible for the patient (see s 44(2)(a)). The Tribunal must also have regard to the matters referred to in s 42(2) (being the matters that should be specified in every application) and the objects of Part 5 (see sub ss 44(2)(b) and (c)).

14. Section 45 restricts the Tribunal’s power to give consent to the carrying out of any medical or dental treatment in a person to whom Part 5 applies. Depending on the nature of the special treatment proposed, there are different consent regimes set out in s 45 of the Act. The consent regime for special treatment under reg 10, being experimental special treatment, and special treatment under s 33(1)(b), new treatment, is that set out in s 45(3) of the Act.

15. As this is an application for special treatment under s 33(1)(a), the more stringent consent regime set out in s 45(2) applies. Relevantly, the legislative regime provides that the Tribunal must not give consent unless it is satisfied, first, that the proposed treatment is the most appropriate form of treatment for promoting and maintaining the patient’s health and well-being (s 45(1)) and, secondly, that the treatment is necessary to (a) save the patient's life or (b) to prevent serious damage to the patient's health (s 45(2)).

16. Thus, before the Tribunal can give consent to the treatment proposed for Ms NKI, it must be satisfied that:

1. The treatment proposed is a special treatment (refer s 33(1));

2. Ms NKI is a person to whom Part 5 applies, namely she is a person who is incapable of giving consent to the treatment (refer s 33(2));

3. It is appropriate for the treatment to be carried out on Ms NKI (refer s 44(1));

4. The proposed treatment is the most appropriate form of treatment for promoting and maintaining Ms NKI’s health and well-being (refer s 45(1)); and

5. The proposed treatment is necessary to save Ms NKI’s life or prevent serious damage to her health (refer s 45(2)).

17. As already noted, in considering the above questions, the Tribunal must have regard to the matters set out in s 44(2).

Issues for determination

18. Having regard to the above, the issues for determination by the Tribunal were as follows:

1. Is the proposed treatment special treatment?

2. Is Ms NKI incapable of providing consent to the proposed treatment?

3. Is the proposed treatment appropriate?

4. Is the proposed treatment the most appropriate treatment to promote and maintain Ms NKI’s health and well-being?

5. Is the proposed treatment necessary to save Ms NKI’s life or prevent serious damage to health?

6. How should the discretion be exercised having regard to the matters set out in s 44(2) being, in this case:

1. The views, if any, of Ms NKI, Dr UDV, and Mr and Mrs KBI;

2. The matters referred to in s 42(2), which were addressed by Dr UDV in her application and during the hearing; and

3. The objects of Part 5.

Evidence and background to the application

19. The Tribunal was provided with the following reports:

1. Report from Dr Z, neurologist, Director, Comprehensive Epilepsy Service, of a public hospital, dated 15 October 2015;

2. Health Professional Report from Dr UDV, dated 9 November 2015;

3. Information brochure from the Royal Australian and New Zealand College of Obstetricians and Gynaecologists on hysterectomies and Consent Advice No 4 (dated May 2009);

4. Report from Ms NKI’s general practitioner, Dr Y, dated 25 November 2015;

5. Histopathology report from Dr X, dated 21 September 2015;

6. Operation report, dated 21 September 2015;

7. Pathology report, dated to 21 September 2015;

8. Report dated 20 October 2015 together with letter dated 23 November 2015 from Dr UDV; and

9. Application for consent to special treatment made by Dr UDV received by the Tribunal on 13 November 2015.

20. According to the report from Dr Z, Ms NKI has severe intellectual disability with epilepsy and very impaired mobility. Dr Z stated that Ms NKI had no speech other than single syllable words. He opined that Ms NKI was incapable of making reasoned personal and lifestyle decisions.

21. Dr Y reported that Ms NKI had developed epilepsy at the age of five and a half months. She has been under the care of a neurologist since she was one and was diagnosed with severe physical and intellectual developmental delay at this time. Her epilepsy is uncontrolled and she has between two and three seizures a week. According to Dr Y, Ms NKI has high-care needs. She is unable to respond to questions and directions and has no understanding or capacity to make decisions about her health. Relevantly, Dr Y opined that Ms NKI is “intellectually the equivalent of a toddler”.

22. In her Health Professional Report dated 9 November 2015, Dr UDV opined that Ms NKI was severely disabled and unable to consent to medical treatment. In her report dated 20 October 2015, Dr UDV opined that Ms NKI was “severely disabled with a complex medical background” of epilepsy, intellectual and development delay and non-verbal, wheelchair-bound, and has double incontinence.

23. Dr UDV’s evidence, as set out in her reports and oral evidence during the hearing, can be summarised as follows:

1. Ms NKI presented to a public hospital in August 2015 with acute vaginal bleeding causing severe anaemia, for which she received a blood transfusion.

2. She received hormonal treatment and was admitted to the intensive care unit of the hospital.

3. Ms NKI also suffered a generalised tonic clonic seizure while in hospital and was subsequently reviewed by the neurology team, as a result of which her epileptic medications were adjusted.

4. In order to both treat and diagnose the source of the problem, Dr UDV arranged for Ms NKI to undergo a diagnostic hysteroscopy, dilatation and curette of her uterus, and the insertion of a intrauterine device known as a “Mirena”.

5. The purpose of this treatment was to assess whether there was any pathological basis for the heavy bleeding as well as to treat Ms NKI's condition with a localised progesterone release from the Mirena device.

6. The hysteroscopy revealed a thickened and irregular endometrial lining, revealing complex endometrial hyperplasia with atypia. This was causing the heavy vaginal bleeding.

7. Based on clinical studies, there is evidence that up to a third of patients with this diagnosis proceed to develop uterine cancer over time.

8. There has been significant morbidity from the heavy bleeding experienced by Ms NKI to date causing significant anaemia requiring blood transfusion and admission to the intensive care unit. The repetition of such consequences was harmful for Ms NKI.

9. There were significant hygiene issues associated with heavy vaginal bleeding causing additional requirements for Mrs KBI and discomfort to Ms NKI.

10. Dr UDV had attempted to treat the problem through the administration of Provera (progesterone) and the localised release of progesterone through the Mirena. Ms NKI continued to spot bleed, and while the medication and Mirena assisted to reduce the flow, this was unusual and concerning. They had tried to wean Ms NKI off the Provera but this had not been possible. It was not a long-term solution and may have other detrimental impacts on Ms NKI’s health.

11. The histopathology raises concerns about whether Ms NKI has either a predisposition to cancer or co-existing cancer cells. The tests did not disclose cancer but it is difficult to test for malignancy in the lining as there may be pockets of malignancy.

12. Dr UDV recommended surgical treatment through a total abdominal hysterectomy and bilateral salpingectomy due to the increased risk of Ms NKI developing endometrial cancer given her current diagnosis. This would eliminate the risk and resolve Ms NKI’s severe bleeding and resulting anaemia problems.

13. The treatment proposed was to take a biopsy during the operation and perform a total or subtotal hysterectomy taking out Ms NKI’s uterus together with a bilateral salpingectomy, taking out Ms NKI’s fallopian tubes, with or without a partial or complete unilateral or bilateral oophorectomy (being the removal of the ovaries). Whether such an oophorectomy was required would depend on whether there was a cyst or other abnormality on or around Ms NKI’s ovaries. If possible, Dr UDV would take the least invasive approach based on the clinical prognosis and testing, such as an ovarian cystectomy or the removal of one as opposed to both ovaries. This would allow Ms NKI to function without the need for hormone replacement therapy and would alleviate any premature menopausal symptoms.

14. The proposed procedure was the most appropriate treatment for Ms NKI. For instance an alternative, endometrial ablation, which destroys the endometrium and creates scarring that stops vaginal bleeding, was not an appropriate alternative because it would not resolve the potential underlying cancer risks for Ms NKI (given the complex, atypical histopathology results and the patchy nature of the ablation). Importantly it may be more difficult to perform a hysteroscopy subsequently if there were further concerns about cancer.

15. The procedure would need to be done by surgery (like a caesarean) and could not be done through vaginal entry because of the nature of Ms NKI’s uterus anatomy.

16. The risks of the proposed special treatment are those identified in an information brochure provided by the Royal Australian and New Zealand College of Obstetricians and Gynaecologists and include the general risks of surgery, such as cardiovascular risks, infection and bleeding, and risks specific to a hysterectomy, being large blood loss requiring a transfusion, injury to organs near the uterus and, on rare occasions, injury to major blood vessels or a gas embolism.

17. Ms NKI has been under general anaesthetic before and there were no particular risk issues or anaesthetic problems identified at that time. Ms NKI is nonetheless a high-risk patient because of her cerebral palsy and post-operative risks. She will receive special post-operative monitoring and the expected recovery time will be six to eight weeks.

18. The alternative to the procedure described in (13) is continued medication to reduce the bleeding and continued monitoring and testing for cancer. The testing involves histopathological testing which must be conducted under general anaesthetic every six months. To control the bleeding, it would be necessary to regularly curette Ms NKI’s uterus and remove and replace the Mirena. Both would require the repeated administration of a general anaesthetic.

19. Dr UDV gave evidence that the same proposed treatment would be recommended for women without a disability who were not of child- bearing age or who did not want children.

20. If Ms NKI developed cancer, any surgery required to remove the cancer would be more invasive and complicated. She may also require chemotherapy, depending on the nature and extent of the cancer. It may also shorten her life.

21. The proposed treatment had the advantage of being a complete solution for Ms NKI’s current heavy bleeding problems and an effective means to eliminate the significant risk of Ms NKI developing cancer without the need for the constant invasive monitoring and testing that was particularly stressful for Ms NKI.

24. Dr UDV also provided copies of the histopathology reports which confirm the diagnosis of complex endometrial hyperplasia with atypia.

25. Mrs KBI supported the application. She stated that Ms NKI hardly had a period 12 months ago but had started bleeding very heavily over the past six months. She had lost weight, had become anaemic and very sickly. This had led to Ms NKI having a transfusion in the emergency department in August 2015. Ms NKI was required to take medication to reduce the bleeding which she was now resisting. She had started sucking her thumb which was a sign of anxiety. Mrs KBI had also noticed that Ms NKI had started losing her hair, which was usually thick and wavy and a feature of pride for Ms NKI.

26. The nature of the surgery had been explained to her and Mr EYI by Dr UDV and they were both very supportive of the operation, while understanding that there were always inherent risks. Both she and her husband were particularly concerned about the risk of cancer and they wanted to eliminate potential risks through surgery. Mrs KBI had read all the material given to her by Dr UDV, which included brochures from the Royal Australian and New Zealand College of Obstetricians and Gynaecologists about the procedures and the potential risks. She was fully aware of the potential complications.

Submissions of separate representative

27. Ms Danis participated in the hearing and asked Dr UDV a number of questions to clarify Ms Danis’s understanding of the proposed treatment and the potential issues and risks. Ms Danis submitted that Ms NKI was not capable of giving consent and that the legislative tests set out in ss 44 and 45 had been satisfied. She further submitted that the Tribunal could provide consent to the proposed special treatment and that the Tribunal should do so in the circumstances of the case.

Is the proposed treatment ‘special treatment’?

28. The proposed treatment is to perform a total or subtotal hysterectomy removing Ms NKI’s uterus together with a bilateral salpingectomy, with or without a partial or complete unilateral or bilateral oophorectomy (being the removal of the ovaries).

29. The hysterectomy is a special treatment because it will have the effect of rendering Ms NKI permanently infertile. This satisfies the definition for ‘special treatment’ in s 33(1)(a) of the Act. This is also the case with a bilateral oophorectomy and the bilateral salpingectomy. There is no dispute about these matters.

Is Ms NKI incapable of providing consent to the proposed treatment?

30. As already noted, s 33(2) of the 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.

31. Based on the evidence of Dr Z, Dr Y, Dr UDV, and Mrs KBI, the Tribunal is satisfied that Ms NKI is incapable of giving or withholding consent to the proposed special treatment.

32. The Tribunal is not only satisfied that Ms NKI is incapable of understanding the general nature and effect of the proposed treatment but is satisfied that she would be unable to indicate her consent in a manner that would allow Dr UDV, or any other treating practitioner, to be confident of her consent.

33. We are therefore satisfied that Ms NKI is incapable of consent or withholding consent on the basis of both ss 33(2) (a) and (b) of the Act. As such, she is a person to whom Part 5 applies and only the Tribunal can provide consent to the proposed special treatment.

Is the proposed treatment appropriate and is it the most appropriate treatment to promote and maintain Ms NKI’s health and well-being?

34. Having regard to the uncontradicted evidence of Dr UDV, who is an experienced and impressive witness, the Tribunal is satisfied that the proposed treatment is appropriate and is the most appropriate treatment to promote and maintain Ms NKI's health and well-being.

35. It is clear from the evidence of Dr UDV that she has considered a number of different alternatives and has conducted extensive testing and monitoring to diagnose the problem and possible solutions. She has consulted closely with Ms NKI’s parents and has given careful consideration to the options. Dr UDV has attempted to reduce the bleeding through Provera and a Mirena. She has also undertaken appropriate testing and has identified significant risk factors through the results of the histopathology. These tests have been undertaken over a period of several months. Relevantly, Dr UDV attended the hearing in person and was questioned by the Tribunal and the separate representative extensively. Her evidence was credible, clear, and persuasive.

36. As observed by Dr UDV, the alternatives to the proposed treatment are medication and continued monitoring through what are nonetheless invasive procedures. Another alternative is endometrial ablation but according to Dr UDV, this would not resolve the potential underlying risks of cancer and may make it subsequently more difficult to perform a hysteroscopy.

37. There is evidence from Mrs KBI that Ms NKI has become increasingly anxious and resistant to further medication. This is another relevant consideration because this has the potential to complicate Ms NKI’s already complex health care needs.

38. Based on the evidence of Dr UDV and Mrs KBI, the Tribunal is satisfied that the risks of the surgery, the recovery time, and the infertility of Ms NKI are matters that will be significantly outweighed by the potential benefits to Ms NKI in having the proposed treatment. The Tribunal finds that this treatment will promote and maintain her well-being for the following reasons:

1. There is evidence that Ms NKI is at risk of developing cancer or cancerous cells that require treatment. These risks are significant and research studies have shown that up to one third of patients diagnosed with the condition of complex endometrial hyperplasia with atypia develop uterine cancer.

2. The Tribunal is satisfied that the proposed treatment will eliminate this potential risk.

3. The continued monitoring and testing, which is invasive and will be ongoing, is likely to have a negative impact on Ms NKI’s health and well-being. This will be avoided by the proposed special treatment;

4. The anxiety, discomfort, and anaemia currently being experienced by Ms NKI as a result of the heavy vaginal bleeding and the medications will also have a negative impact on Ms NKI’s health and well-being. Similar, this will be avoided by the proposed special treatment.

Is the proposed treatment necessary to save Ms NKI’s life or prevent serious damage to health?

39. The Tribunal is satisfied that the proposed special treatment is necessary to prevent serious damage to Ms NKI’s health.

40. In making this finding, the Tribunal has had regard to the matters referred to in [38] above and the evidence of Dr UDV at [23] and the histopathology reports referred to in [24]. The Tribunal has also had regard to the evidence from Mrs KBI about the serious impact this ongoing issue is having on Ms NKI’s health. Relevantly, Ms NKI needed urgent blood transfusions and was admitted to intensive care as a result of the heavy bleeding. This highlights the seriousness of the problem.

41. While there is evidence the bleeding can be controlled by the use of Tranexamic Acid, Provera, and a Mirena, this will not resolve the underlying problem. Furthermore, there is evidence that the long-term use of Provera and a Mirena, together with the regular monitoring and testing of Ms NKI, will cause serious damage to Ms NKI’s health because of her complicated health care needs.

42. Dr UDV believes she may have identified the cause of the bleeding, namely the complex endometrial hyperplasia with atypia, but this is not certain. The nub of the issue is that there is credible evidence that Ms NKI, as evidenced by her diagnosis of complex endometrial hyperplasia with atypia, has a significant risk in developing cancer. Cancer is a serious illness. It is life-threatening and any treatment would be likely to be invasive and complicated (refer [23(20)]). Both the cancer and its treatment will cause serious damage to Ms NKI’s health. This is not controversial. The proposed special treatment will prevent this risk.

43. The alternative of monitoring and testing, which would be otherwise required because of the risk, would have a serious impact on Ms NKI’s health because it will expose her to regular hospitalisation and general anaesthetic. However, of paramount importance is the fact that this treatment will not prevent the risk but rather minimise risks through detection. This may also be unsatisfactory given the potential difficulties in detection through testing the lining of Ms NKI’s uterus, as opined by Dr UDV (refer [23(11)]). The proposed treatment removes these risks and thereby prevents the harm and damage to Ms NKI’s health that would be likely to be caused from these risks.

How should the discretion be exercised?

44. The matters referred to above enliven the Tribunal’s jurisdiction to consent the special treatment proposed. However, the Tribunal must also consider the matters set out in s 44(2) of the Act in deciding whether to give consent. Those matters are considered below.

What are the views of Ms NKI, Mrs KBI and Mr EYI, and Dr UDV?

45. Because of Ms NKI’s disability, the Tribunal was unable to ascertain the views of Ms NKI.

46. There is evidence that Mr EYI and Mrs KBI are Ms NKI’s persons responsible for the purposes of s 33A of the Act. Mrs KBI supports the application and gave evidence that Mr EYI also supports the application. They both want Ms NKI to undergo the surgery and have consulted with Dr UDV about the risks.

47. As already noted, Dr UDV strongly recommends the proposed special treatment. She gave evidence that she would recommend this surgery to other patients with the same diagnosis who were either no longer of child- bearing age or who did not want children.

Consideration of the matters set out in s 42(2) being the matters specified in the application for consent

48. The condition that requires treatment is both the heavy vaginal bleeding and the complex endometrial hyperplasia with atypia, which has a 30 per cent chance of developing into uterine cancer.

49. The alternative courses of treatment and the general nature and effect of each of those treatments are set out in Dr UDV’s evidence at subparagraphs (10), (14), (15), and (18) of [23]. The Tribunal accepts this evidence and therefore finds the alternative treatments, and their nature and effect, are as set in those said subparagraphs.

50. The nature and degree of the significant risks associated with each of the courses of treatment is also set out in Dr UDV’s evidence referred to at [23].

51. The Tribunal accepts this evidence and therefore finds that the associated risks are as follows:

1. The risks of the proposed special treatment are the risks of general anaesthetic and the risks associated with major surgery and the post-operative recovery (refer [23(16)]).

2. Ms NKI has not undergone major surgery of this magnitude but has had general anaesthetic. There is no evidence she had been previously adversely affected by the anaesthetic.

3. The risks associated with the use of medication to control the bleeding and the monitoring are set out in the evidence of Dr UDV referred to at [23(10) and (18)]. The most significant risk is that the monitoring will not identify any malignancy which may still be present.

4. The risks associated with the endometrial ablation are set out in the evidence of Dr UDV referred to at [23(14)]. The main risk is that it will not eliminate the risk of subsequent malignancy, and may make monitoring for this and subsequent hysteroscopy impossible, or at least, complicate the surgery.

52. Dr UDV has explained the reasons why the special treatment is being proposed. Those reasons are set out in detail in her evidence as referred to at [23].

Objects of the Part

53. Based on the evidence of Dr UDV and Mrs KBI, the Tribunal is satisfied that consent to the proposed special treatment will ensure Ms NKI receives the medical treatment she needs to resolve her serious health issues and that the treatment will promote and maintain her health and well-being.

Conclusion on s 44(2) factors

54. All of the matters referred to in s 44(2), being those matters set out above at [45]‒[53], favour the Tribunal consenting to the special treatment proposed. These matters were not in dispute and were supported by the evidence provided to the Tribunal. Relevantly, the application was supported by the separate representative.

Findings and conclusion

55. The Tribunal finds as follows:

1. The proposed treatment is a special treatment within the meaning of s 33(1) of the Act;

2. Ms NKI is incapable of giving or withholding consent to the proposed special treatment;

3. The proposed treatment is appropriate;

4. The proposed treatment is the most appropriate treatment to promote and maintain Ms NKI’s health and well-being;

5. The proposed treatment is necessary to prevent serious damage to Ms NKI’s health; and

6. The matters set out in s 44(2) of the Act also favour the Tribunal consenting to the proposed special treatment.

56. Having regard to these matters, the Tribunal consented to the proposed special treatment as set out in the orders dated 15 December 2015.

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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: 16 May 2017