NLD

[2022] NSWCATGD 13

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

NLD [2022] NSWCATGD 13

Hearing dates:

29 April 2022

Date of orders:

29 April 2022

Decision date:

29 April 2022

Jurisdiction:

Guardianship Division

Before:

R H Booby, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
K Laurence, General Member (Community)

Decision:

The Tribunal consents to the following special medical treatment being provided to NLD:

total hysterectomy and bilateral salpingectomy under 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 – total hysterectomy and bilateral salpingectomy – 48-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 result in permanent infertility – whether treatment is the most appropriate form to promote health and well-being – 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

NLD (the person)
SBT (applicant)
HZD (carer)

Representation:

Nil.

File Number(s):

NCAT 2021/00104099

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

SPECIAL MEDICAL CONSENT

Background

1. NLD is 48 years old and lives in West Sydney, NSW, with her parents. We were advised that NLD’s brother, Mr Z and her father, HZD, act as her persons responsible regarding medical treatment. NLD is of Cambodian heritage.

2. The Tribunal received an application seeking consent to medical treatment for NLD. The applicant was SBT who sought consent to perform a total hysterectomy and bilateral salpingectomy on NLD.

3. In the application SBT indicates that the proposed treatment is special medical treatment and that NLD was not able to understand the proposed treatment due to an intellectual disability.

4. On 22 April 2022 the Tribunal ordered that NLD be separately represented in respect of the application. However no separate representative was made available by Legal Aid.

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.]

6. At the commencement of the hearing, we sought the views of the parties as to whether the Tribunal should proceed in the absence of a separate representative. The parties, including NLD, sought that we proceed with the hearing.

WHAT MUST BE PROVED?

7. 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”

8. 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.

9. 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).

10. The Guardianship Act imposes a further consideration on the Tribunal in s 44. 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.

11. 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.

12. 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 NLD incapable of giving consent to the proposed special treatment?

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

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

Is the proposed treatment ‘special treatment’?

13. The application is for a total hysterectomy and bilateral salpingectomy. SBT explained that:

1. It was proposed to remove NLD’s uterus to prevent further bleeding

2. It was proposed to remove the fallopian tubes and cervix as well as the uterus to reduce the risk of cancer and because those organs would be non-functional following the hysterectomy.

3. It was proposed to leave NLD’s ovaries intact so that she would continue to produce hormones and would not require hormone treatment.

14. We were satisfied that the proposed treatment would render NLD permanently infertile and therefore it is special medical treatment.

Is NLD incapable of providing consent to the proposed treatment?

15. We had regard to a report of a neuropsychological assessment dated 22 December 2020 performed by Ms Y, Provisional Clinical Neuropsychologist, and Dr X, Clinical Neuropsychologist. The following information and views are provided:

1. The purpose of the assessment was to provide an opinion as to whether NLD was able to provide her own consent to a total abdominal hysterectomy.

2. NLD explained that she had been subject to heavy bleeding with her periods and had collapsed in her bathroom and had been taken to the hospital by ambulance that had been called by her brother.

3. When asked about the advantages and disadvantages of the procedure NLD was able to indicate that an advantage was that it would end her heavy bleeding. She was not able to explain the risks involved. The risks were described to her in terms of risk of increased bleeding, reaction to anaesthetic and a small chance of death. When asked to indicate which risk worried her the most, she indicated the risk of reaction to the anaesthetic.

4. It was explained to NLD that the procedure would mean that she would be unable to have children and she indicated that she did not want children and mentioned that she had four nieces and nephews.

5. At a second assessment the risks of the procedure and the resultant infertility were again canvassed. NLD was not able to explain the risks and said that she was scared that she might get hurt. She was not able to elaborate whether she was concerned about the side effects of the procedure.

6. Testing using objective neuropsychological assessments indicated the following:

1. NLD’s overall intellectual functioning was within the extremely low range. Her verbal comprehension, perceptual reasoning, processing speed and executive functioning were profoundly impaired.

2. NLD demonstrated a deficit in her ability to encode new information.

3. NLD’s responses were concrete in nature.

4. In terms of adaptive functioning NLD has broadly age- appropriate functioning regarding self-care, health and safety and social skills but has substantially limited functioning in other areas.

5. NLD’s deficits in overall functioning are consistent with a diagnosis of mild intellectual disability.

7. In respect of her ability to understand and provide consent to the proposed procedure, NLD lacked a full understanding of treatment, risks of the procedure and possible complications. Her documented cognitive impairments suggest that she is not able to retain and weigh the benefits and risks of the procedure despite repeated explanation.

8. In the view of Ms Y and Dr X, NLD is not able to provide informed consent to the procedure.

16. When asked during the hearing about her understanding of the procedure and the risks, NLD said that she understood that the treatment was to stop her period bleeding. She did not provide any more detail.

17. SBT said that in her opinion, NLD had a basic understanding of the procedure but did not understand any more complex matters including the risks of the procedure.

18. We accepted and placed weight in the comprehensive neuropsychological assessment, the outcome of which was consistent with the views of SBT. Taking this into account as well as NLD’s comments about the procedure, we were satisfied that NLD is not able to understand the general nature and effects of the treatment and therefore is not able to provide her own consent to the treatment.

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

19. In a letter dated 3 November 2021 Dr V, Registrar for SBT, notes NLD has hormone provoked above knee deep vein thrombosis in 2020, as well as concurrent bilateral lower limb deep vein thrombosis. NLD’s bleeding was better controlled using Depo Provera and her iron levels were replete following a recent iron infusion. It was proposed to proceed with the proposed hysterectomy within 90 days with the option of expediting the procedure if the bleeding intensified.

20. In her application and oral evidence SBT provided the following information:

1. NLD experiences heavy menstrual bleeding due to multiple fibroids and exacerbated by anticoagulation for venous thrombosis. She has been hospitalised due to heavy bleeding and anaemia.

2. NLD’s bleeding has settled with the use of Depo Provera but still continues.

What are the alternative options for treatment that are available?

21. In a Health Professional report form for Special Medical Treatment, SBT provided the following information:

1. There was an attempt to use a Mirena IUD, but it fell out of place.

2. There was attempted resection of the fibroids, but it was not able to be completed due to anatomical difficulties and difficulties with visualisation.

3. As she has inter-uterine fibroids, NLD was not suitable for endometrial ablation.

22. During the hearing SBT said that whilst Depo-Provera has resulted in reduced bleeding, this is not a long-term solution due to the risks associated with its use, including osteoporosis. Additionally, the Depo Provera is ineffective to treat the fibroids.

23. NLD, HZD and Mr Z were all supportive of the need for the proposed procedure.

24. During the hearing we discussed with NLD that the procure would result in her being unable to have children and she said that she was “ok with this”.

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

25. SBT said that the treatment is proposed to reduce the bleeding and to avoid resultant risks including risk of catastrophic bleeding and other risks including that of collapse and hospitalisation, as had occurred previously, and anaemia.

26. SBT also confirmed that NLD is likely to require long-term anticoagulant treatment for the venous thrombosis and this increases the risk of heavy bleeding.

Are there any risks associated with the proposed treatment?

27. SBT advised that the risk of the procedure is bleeding, infection, damage to surrounding organs, possible need for a blood transfusion, pulmonary embolism, deep vein thrombosis and the risk of the anaesthetic.

28. SBT said that if the operation proceeded, she would work with a haematologist to reduce the risk of blood clots and would be likely to switch to a more controllable form of anticoagulation medication. She also indicated that care would be taken to plan the route of the surgery. We were provided with a report from Dr W, a Clinical Haematologist, addressing the issues of NLD’s diagnosed conditions and the proposed procedure.  

Is the proposed treatment the most appropriate treatment?

29. We are of the view that all alternative procedures have been explored and that there is no realistic alternative to the proposed treatment and therefore that it is the most appropriate treatment.

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

30. We are satisfied on the evidence that in the absence of the treatment NLD would continue to experience heavy bleeding with resultant risks to her health and day to day wellbeing. Accordingly, we are satisfied that the proposed treatment will promote her health and wellbeing.

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

31. We took into account that NLD has been hospitalised in the context of a collapse in association with heavy bleeding, has been diagnosed with anaemia that has been treated with an iron infusion. We also took into account that NLD’s condition is exacerbated by medication required to treat her venous thrombosis and this exposes her to a greater health risk. On the basis of this evidence, we are satisfied that the treatment is necessary to prevent serious damage to NLD’s health.

Conclusion

32. Taking into account all of the matters set out above we consented to the proposed treatment. As there are significant delays in the availability of surgery due to pressures on hospitals resulting from the COVID-19 pandemic, we provided a period of 12 months during which the consent would remain valid.

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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: 19 September 2022