NXM

[2014] NSWCATGD 52

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	NXM [2014] NSWCATGD 52
Hearing dates:	14 February 2014
Date of orders:	04 March 2014
Decision date:	04 March 2014
Jurisdiction:	Guardianship Division
Before:	R Booby, Senior Member (Legal) Dr B McPhee, Senior Member (Professional) F Hilson, General Member (Community)
Decision:	1. The application for consent to special medical treatment made by Dr KGF in respect of Miss NXM is dismissed
Catchwords:	SPECIAL MEDICAL TREATMENT – application for consent to special medical treatment – hysterectomy with ovarian conservation – 18-year-old woman – section 45(2) of the Guardianship Act 1987 (NSW) – whether treatment necessary to save patient’s life or prevent serious damage to patient’s health – application dismissed
Legislation Cited:	Family Law Act 1975 (Cth) Children (Care and Protection) Act 1987 (NSW) Guardianship Act 1987 (NSW), pt 5; ss 32, 33(1), 33(1)(a), 33(1)(c), 33(2), 36(1)(b), 42, 44, 45(2)
Cases Cited:	Department of Health and Community Services v JWB &SMB (Marion's Case) [1992] HCA 15; 1992 175 CLR 218 JLS v JES (1996) 20 Fam LR 485 P & P (1994) 181 CLR 583 XTV [2012] NSWGT 5
Category:	Principal judgment
Parties:	Miss NXM (subject person) Mrs MGM (mother and carer) Mr KPM (father and carer)
Representation:	Separate Representation: M Fallon (subject person)
File Number(s):	55018
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

These Reasons for Decision are for the orders of the Tribunal made on 4 March 2014 relating to special medical treatment for Miss NXM.

What the Tribunal decided

1. The Tribunal refused to consent to the special medical treatment for Miss NXM and dismissed the application by Dr KGF.

Application details

2. On 25 November 2013, the Tribunal received an application from Dr KGF, a gynaecologist, seeking consent for special medical treatment for Miss NXM under section 44 of the Guardianship Act 1987 (NSW) (“the Act”). The proposed special medical procedure is hysterectomy involving the removal of the uterus whilst conserving ovarian function.

3. On 20 December 2013, the Tribunal appointed a separate representative for Miss NXM. Ms Mary Fallon, of counsel, appeared as the separate representative for Miss NXM.

Conduct of the hearing

4. The hearing took place on 14 February 2014. At the conclusion of the hearing, the Tribunal reserved its decision. The Tribunal was of the opinion that fairness to Miss NXM herself, and to the other participants, required the Tribunal to give considerable thought to the issues raised in these proceedings. The Tribunal issued its decision on 4 March 2014

5. A list of the participants in the hearing is contained in an appendix to these Reasons for Decision. [Appendix removed for publication.]

BACKGROUND

6. At the time of the hearing, Miss NXM was 18-years-old but turned 19-years-old on 23 February 2014. She lives in southwest Sydney with her parents, Mrs MGM and Mr KPM, who are her carers.

7. According to reports provided to the Tribunal, Miss NXM has a severe intellectual disability and Chromosome 17 Duplication with Charcot Maries Tooth syndrome. According to a report dated 22 September 2011 prepared by Ms Z, a speech pathologist, and Ms Y, a psychologist, Miss NXM is able to respond to her name being called and to be able to attend to preferred tasks for over an hour and to be able to follow familiar routines but to become upset when routines are changed. She is said to use gestures, facial expressions, body language, and vocalisations to communicate her wants and needs.

8. Miss NXM attends programs at a respite service for young people with a disability and has been attending there on weekends and during school holidays for some eight years. In 2013, she was attending a school for students with intellectual disabilities

9. Dr KGF is Miss NXM’s gynaecologist to whom she was referred by Dr DVB who states that she has been treating Miss NXM since 1997 and that she sees her several times a year.

WHAT MUST BE PROVED?

10. Before proceeding to an examination of the evidence and submissions made to the Tribunal, it is appropriate to refer to the relevant provisions of Part 5 of the Act under which this application was determined.

11. The objects of Part 5 are found in s 32 and are 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.

12. If a person is incapable of giving informed consent to special medical treatment then only the Tribunal may provide consent (the Act, s 36(1)(b)). Such treatment is defined in s 33(1) of the 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”

13. Under s 33(2) of the 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.

14. The 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 (the Act, s 45(2)).

15. The Act imposes a further consideration on the Tribunal in section 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. The Tribunal must also take into account matters set out in section 42 of the Act which are:

• the grounds on which it is alleged that the patient is a patient to whom this Part applies;

• the particular condition of the patient that requires treatment;

• the alternative courses of treatment that are available in relation to that condition;

• the general nature and effect of each of those courses of treatment;

• the nature and degree of the significant risks (if any) associated with each of those courses of treatment; and

• the reasons for which it is proposed that any particular course of treatment should be carried out.

16. An analysis of relevant legal authority in relation to the interpretation of Part 5 of the Act is contained in XTV [2012] NSWGT 5 (6 February 2012), [25]-[49]. In that matter, the Tribunal referred to the matter of Department of Health and Community Services v JWB &SMB (Marion's Case) [1992] HCA 15; 1992 175 CLR 218. That matter involved provisions of the Family Law Act 1975 (Cth) under which the Family Court could consent to surgery that was in the best interests of the child. In that matter, the High Court examined factors which combine to indicate that a decision to authorise sterilisation is a “special case” and at [73]–[74] state that whilst it is not possible to formulate a strict rule about ‘best interests’, sterilisation is a “step of last resort”.

17. In the matter of XTV, the Tribunal also examined the matter of JLS v JES (1996) 20 Fam LR 485. That matter involved an application to consent to sterilisation of a 14-year-old girl. Consent was sought under the (then) Children (Care and Protection) Act 1987 (NSW) which required that the treatment was necessary to save the child’s life, or to prevent serious damage to the child's health. In that matter, Bryson J referred to the test as being “stringent” and requiring the treatment as a “necessity” because other methods had been tried and failed.

18. In the matter of XTV, the Tribunal also considered the matter of P & P (1994) 181 CLR 583, in which the High Court dealt with a case in which parents had sought the consent of the Family Court to the sterilisation of a young woman and had made it clear that they did not intend to seek authorisation under the Act. The Family Court sought the High Court's decision as to whether consenting to the treatment would be contrary to the Act which posed a more stringent test. In that matter, the High Court referred to the distinction drawn in the Act between special treatment as defined in paragraph (b) of the definition of “special treatment” in s 33(1) of the Act and special treatment as defined in paragraph (a) of the definition, which includes any treatment likely to have the effect of rendering permanently infertile the person on whom it is carried out. The latter category of special treatment attracts the additional requirements set out above as being that the Tribunal must be satisfied that the treatment is necessary to save the patient's life or to prevent serious damage to the patient’s health. The High Court referred to the latter requirement as imposing “particularly stringent conditions” in relation to treatment involving sterilisation.

19. 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 Miss NXM incapable of giving consent to the proposed special treatment?

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

4. Is the proposed special treatment the most appropriate form of treatment for promoting and maintaining Miss NXM’s health and well-being?

THE EVIDENCE

20. In the application Dr KGF states that the treatment:

• Is for the purpose of the permanent elimination of menstruation which in the case of Miss NXM is “heavy and troublesome menstruation”. He states that she has an “inability to look after her own hygiene leading to soiling and bleeding in any situation in private and public”.

• Will benefit Miss NXM because she “will not need to deal with uncontrolled bleeding as she or her carers are unable to manage her periods without public and private exposure to blood”.

21. In relation to possible alternative treatments, Dr KGF states “alternatives such as hormones are unsuitable as [Miss NXM] cannot swallow tablets and other methods of hormone delivery are associated with erratic bleeding”. He says that if the treatment is not carried out the likely consequences for Miss NXM are that she will “continue to soil herself due to inability to manage pads, inability to insert tampons and her propensity to remove them at any time anywhere”.

22. In an additional questionnaire to which he responded on 29 December 2013, Dr KGF makes statements to the following effect:

• Miss NXM is not able to take oral contraceptives because she is not able to take tablets;

• Depo-Provera is not a suitable alternative treatment because it is associated with low bone density which she already has;

• The uses of an intrauterine device or endometrial ablation are not appropriate alternatives because they do not guarantee the stopping of periods.

23. In response to the question of whether the treatment is necessary to “prevent serious damage to the patient’s health”, Dr KGF states: “periods seem to be embarrassing for her. She soils herself and deals with tampons/pads in front of anyone present. She seems distracted by bleeding”.

24. In response to a question about how the treatment might promote and maintain the health and well-being of Miss NXM, Dr KGF states that it will “eliminate periods and the general messiness associated with these and alleviate distress for her”.

25. Dr KGF also states that in his opinion, Miss NXM’s “fertility should not be a consideration as she cannot look after herself let alone a baby/child”.

26. In her responses dated 13 January 2014 to the questionnaire regarding special medical treatment, Dr DVB provides additional information to the following effect:

• Miss NXM is non-verbal and is therefore not able to express her views about menstruation, pregnancy, childbirth, or relationships. However her behaviour, including her response to the sight of menstrual blood and the refusal to wear sanitary pads, indicates that she is distressed by menstruation;

• Miss NXM’s menstrual bleeding lasts for up to seven days in a cycle of 28 days and is heavy for the first three to four days. She is not able to verbally express her feelings but indicates pain by hitting her abdomen and sometimes has vomiting and diarrhoea. She is distressed by wearing sanitary pads and tries to remove them from her underwear to discard them, even in public places. She sometimes removes her clothes to assist in this effort;

• Miss NXM’s behaviour during her period results in blood-soiled clothing with attendant health risks and unwanted attention and complaints from others in contact with her.

• At night, Miss NXM refuses to wear pads or other sanitary underwear. She becomes distressed at any sight of blood and soiled clothing and sheets must be removed immediately. Her refusal to wear pads and underwear during her period results in additional problems with her double nocturnal incontinence and risks further health problems, including rashes and infections;

• Blood spillage in the floor causes a falls risk for Miss NXM who is at increased risk of fractures because she has “very low” bone density.

• Miss NXM’s menstrual problems prevent her from staying in respite care overnight during the times of her periods;

• Miss NXM must have all medications in a liquid form or crushed into food. This is not an appropriate vehicle for the delivery of the oral contraceptive pill to ensure reliable suppression of bleeding and unexpected breakthrough bleeding would exacerbate current problems;

• Miss NXM would have an increased risk of thromboembolism when using an oral contraceptive because she is immobile for most of the day and tends to sit with her legs crossed;

• Miss NXM is very distressed when approached for medical examination and three-monthly injections of Depo Provera would be “strongly resisted” and would cause “extreme distress” and require forcibly holding Miss NXM down to receive the injection. Additionally, it is not uncommon for irregular bleeding of up to six months after commencing Depo-Provera, which is not recommended for use with Miss NXM due to her low bone density;

• A variety of strategies have been attempted to assist Miss NXM to deal with her periods but these have been unsuccessful.

27. In response to the question “is the treatment necessary to prevent serious damage” to Miss NXM’s health, Dr DVB states:

28. Menstruation causes significant distress for Miss NXM.

• Sanitary pads cause her great discomfort and her preoccupation with removing them and the effects on her behaviour impact on her quality of life.

• Other methods of suppressing menstruation would cause psychological distress to Miss NXM and would have serious long-term health problems.

• Miss NXM has heavy bleeding for some days of her period and has a limited diet and is at risk of anaemia. Vitamin supplements are not appropriate as they adversely affect her already poor appetite bowel functions.

• There are a number of factors that indicate that a possible future pregnancy is not in Miss NXM’s best interests.

29. In relation to the question as to how the proposed treatment would “promote and maintain the health and well-being” of Miss NXM, Dr DVB provides the following information:

• A hysterectomy would be completely effective in eliminating the problems of menstruation and the distress experienced by Miss NXM without affecting ovarian function and hence, bone health;

• Apart from the initial short-term effects of surgery there would be no psychological implications of the hysterectomy because Miss NXM would be unaware of the nature of the procedure and its purpose. Its effect would be to remove her monthly distress, improve her ability to attend and participate in additional activities, access stimulating community activities and to interact in a more positive and accepted way with her peers and their families;

• The hysterectomy would eliminate Miss NXM’s disinhibited behaviour such as removing her clothes and touching her genital area, which has attracted attention and complaints from others;

• The procedure would limit the potential health risks such as anaemia and any possible future pregnancy.

30. In additional comments on the questionnaire, Dr DVB emphasises the devotion and commitment of Mr KPM and Mrs MGM to the care of Miss NXM and their efforts to explore all other possible avenues to deal with the issues caused by her responses to menstruation.

31. The Tribunal also had regard to an undated document provided by Mrs MGM who makes statements to the following effect:

• All available sanitary napkins have been tried in an attempt to find one that is more comfortable for Miss NXM;

• Miss NXM constantly readjusts her underwear to attempt to remove sanitary napkins with the result that sometimes the unattached napkin falls off in view of everyone. She has also been known to pull down her pants in public to remove a pad;

• At night if there is “one spot” of blood on her sheets they need to be replaced. Mr KPM and Mrs MGM have purchased black sheets to try to hide blood spills but as Miss NXM refuses to wear a sanitary napkin at night, when she awakes there are large blood spills, including clots on the bed linen. The carpet has been replaced to try to hide the bloodstains;

• The need to change bed linen throughout the night results in the need to do three or four loads of washing every night.

• The added issues of stomach pain and diarrhoea at the time of menstruation, in addition to Miss NXM’s double incontinence, result in mixed soiling of sheets with resultant risks to Miss NXM’s hygiene.

• The use if an intrauterine device is not supported because it would require a general anaesthetic. Miss NXM has already had 12 anaesthetics in her 18 years and Mr KPM and Mrs MGM would only consent to another if it were a permanent solution.

• Miss NXM is limited by her menstruation and reactions to it so that she is not able to visit her grandparents or to access overnight respite when menstruating.

• In addition to her intellectual disability, Miss NXM has autistic traits.

• Assistance has been sought from psychologists and occupational therapists to deal with Miss NXM’s responses to her menstruation and the use of sanitary napkins. At the time of writing a “brushing” approach was being trialled on the basis that this might eliminate her sensory sensibilities and hence increase her tolerance to sanitary napkins. However, the approach had not yielded results.

• The proposed hysterectomy is an important procedure for the maintenance of Miss NXM’s dignity.

32. During the hearing Mr KPM and Mrs MGM provided evidence about strategies used to assist Miss NXM deal with menstruation, in addition to “brushing”, including doll therapy and modelling by Mrs MGM.

Further Evidence Regarding Serious Damage to Health

33. During the hearing, the Tribunal sought further evidence pertaining to whether or not the proposed procedure was “necessary to prevent serious damage” to Miss NXM’s health. The following evidence was provided.

Possible anaemia

34. Dr DVB said that in her opinion, Miss NXM’s heavy periods in addition to her poor diet might cause her to be anaemic. She said that no blood test has been conducted because Miss NXM is afraid of needles. She said that such a test would need to be conducted under a general anaesthetic. Dr DVB said that it is not appropriate for Miss NXM to take iron supplements because she has bowel problems. She said that changing Miss NXM’s diet to overcome possible anaemia is also not an option because she resists eating red meat, which, in any case, is unlikely to be a sufficient supplement.

34. In relation to treating Miss NXM’s possible anaemia, Dr KGF added that increasing the intake of green leafy vegetables would also be insufficient to address any iron deficiency.

35. In response to questioning from Ms Fallon, it was agreed that whilst Miss NXM has undergone a number of previous procedures under a general anaesthetic, her iron levels have not been assessed. However, Dr KGF said that in his experience most menstruating women are low in iron, and Dr DVB also said that a number of menstruating women that she treats have low iron levels.

Infection Risk

37. Dr DVB said that Miss NXM becomes constipated at the time of her menstruation and that this could result in complications such as increased risk of infection to organs such as the kidneys.

38. Dr DVB also said that the night-time soiling which is more frequent during Miss NXM’s menstruation exposes her to the risk of skin rashes and infections from which she has suffered in the past. Dr DVB also said that she believes that Miss NXM’s very low weight probably means that she has reduced immunity. Mr KPM said that he believes that the skin rashes are more serious for Miss NXM than they would be generally because of her heightened sensory sensitivity.

Psychological Distress

39. As outlined above, the written submissions of Dr KGF, Dr DVB, and Mrs MGM emphasise the distress experienced by Miss NXM in relation to menstruation, including the bleeding and the need to wear sanitary pads. Mrs MGM said that she believes that Miss NXM’s autistic tendencies partly explain her extreme reactions. She said that these tendencies are further demonstrated by Miss NXM’s insistence on eating the same food and wearing the same clothes.

40. Mr KPM and Mrs MGM said that in their opinion, Miss NXM’s behavioural disturbances are more frequent when she is having her period. However, in response to a question from Ms Fallon, Mrs MGM said that Miss NXM does display distress at times other than when she is menstruating including when she is physically uncomfortable for other reasons.

41. In a letter dated 11 October 2013 addressed “To Whom it May Concern”, a school counsellor states that Miss NXM does not have a diagnosis of autism but she does have some autistic features particularly in the sensory areas. The letter notes that Miss NXM has “great discomfort and distress” during her periods and that the sanitary napkin causes her irritation and she constantly tries to remove it, and that her preoccupation with this has impacted on her ability to participate in learning.

42. In a letter dated 19 October 2013 addressed “To Whom it May Concern”, Ms X, who is the Executive Officer of the respite service, states that Miss NXM has been attending that service over a period of eight years on weekends and during holidays and that over that time the staff have witnessed Miss NXM’s “significant distress and discomfort on a monthly basis during her menstruation, with the experience and use of sanitary pads clearly the source of such emotions”. Ms X states that as a result, at these times, Miss NXM “is distracted, frustrated and unable to attend or engage with people, activities and /or her environment in any meaningful way” and that as result her distress is heightened and her dignity is compromised.

43. Ms X also states that Miss NXM’s ability to participate in programs of the respite service, and in particular overnight respite programs is limited due to the “severity of her disturbance and distress” and as a result she is disadvantaged in her “ability to attend programs, interact with peers and/or access the community and stimulating activities”. During the hearing, Mr KPM added that when Miss NXM is taken on outings, there are eight participants and if her needs are greater than could be attended to in a group of that size, she would be excluded from the activity. He also noted that other parents have commented adversely that their children have spoken of Miss NXM removing her underwear and disposing of her sanitary napkin. He said that when she has a period, Miss NXM is sometimes required to remain in the centre rather than attend activities.

44. During the hearing, Dr DVB said that she has considerable experience in working with people with learning disabilities and has completed a Certificate in Learning Disabilities at a University in NSW. She said that in her opinion, the welfare of people with such disabilities includes the extent to which they are able to fit into society and to mix with others. She said, therefore, that restrictions on Miss NXM’s ability to participate in activities with others are a serious impediment to her welfare.

Further Evidence Regarding Possible Alternative Treatments

45. During the hearing, the Tribunal sought additional evidence regarding possible alternative treatments.

46. In relation to the possible use of an intrauterine device such as a Mirena device, Dr KGF said that he considers such a device to be inappropriate because of the need to insert a new device every five years under a general anaesthetic. He said that if Miss NXM has small uterus, which is likely, as she weighs only 38 kilograms, there is a high likelihood of rejection of an intrauterine device.

47. Dr DVB said that she considered it was not appropriate to use a Mirena device because of the possibility of irregular bleeding. She said in her experience such a device can reduce the quantity of blood but increase the number of days of light blood loss. She said that “spotting” for six months after the insertion of such device is possible. Dr DVB also said that in more than 10% of cases there is abdominal and pelvic pain associated with the use of the Mirena device, and that the pain is more likely in women who have not given birth because they would have a smaller uterus. She also said that headaches are a common side effect of the device and in the case of Miss NXM it would not be possible to assess any pain. She said that in her experience some gynaecologists are opposed to the use of such a device in women who have not had children.

48. Dr KGF said that he believes the use of Depo Provera is contra-indicted because of its association with osteoporosis, and that endometrial ablation is also not appropriate because it does not stop bleeding in 40% of cases. He said that in his opinion, a hysterectomy is the only procedure that is likely to stop the menstruation that is the source of Miss NXM’s distress.

49. As noted above, evidence was provided of psychological approaches that have been attempted to deal with Miss NXM’s distress and behaviours in response to her menstruation, including brushing, doll therapy, and modelling.

Submissions of the Separate Representative

50. Ms Fallon submitted that:

• Whilst Miss NXM is distressed about the her menstruation and bleeding, the evidence provided was that she also becomes distressed about other matters, and it was unclear whether, and to what extent, the proposed procedure would cure the problem at which it was aimed. In this respect she said that the proposed treatment is unlike treatment for a physical life threatening condition, such as cancer.

• Whilst the evidence establishes that Miss NXM has reduced access to services due to her behaviour in relation to her menstruation, she is not totally excluded from services and activities.

• The procedure for which consent is being sought is one of “last resort”, but in her view the evidence did not support the assertion that the use of a Mirena IUD is not a viable alternative.

• In her view, the proposal does not meet the “stringent conditions” referred to in the matter of P & P (1994) 181 CLR 583 as being required for consent to a procedure that would result in sterilisation.

Consideration of the Evidence

Is the proposed treatment “special medical treatment”?

51. It was accepted by all those participating in the hearing that the proposed treatment would have the effect of rendering Miss NXM permanently infertile. The Tribunal was satisfied that the proposed treatment is “special medical treatment” as defined by the Act.

Is Miss NXM incapable of giving consent to the proposed special treatment?

52. Miss NXM attended the hearing for a short period but appeared distressed. She left the hearing room in the company of her grandmother. During the time she was in the hearing room, she was not able to communicate or to participate in the hearing. On the basis of Miss NXM’s presentation and the oral and documentary evidence, the Tribunal was satisfied that due to the level of her intellectual disability, Miss NXM is not able to provide informed consent to the proposed treatment.

Is the proposed special treatment the most appropriate form of treatment for promoting and maintaining Miss NXM’s health and well-being?

53. The Tribunal was satisfied that the evidence provided by Dr KGF and Dr DVB establishes that hormonal treatments for stopping Miss NXM’s menstruation carry significant risk for Miss NXM.

54. The Tribunal was also satisfied on the evidence that techniques including endometrial ablation and the use of an intrauterine device are inappropriate because they do not guarantee the necessary outcome of stopping menstrual bleeding.

55. Regarding the specific matter raised by Ms Fallon, the Tribunal was satisfied on the evidence that there is a significant risk of ongoing bleeding following the use of alternatives such as a Mirena device, and that such an occurrence, especially on an irregular basis, would not address the problems outlined. The Tribunal was also satisfied that as Miss NXM is limited in her ability to express pain, the use of the Mirena device, with attendant possible side effects including abdominal and pelvic pain and headaches is inappropriate.

56. Taking these conclusions into account, the Tribunal was satisfied that other treatments are not appropriate for stopping Miss NXM’s menstrual cycle.

57. However, whilst the Tribunal was provided with some evidence that Miss NXM’s menstruation poses a risk to her physical health, much of the evidence concerned issues arising from her reactions to her menstruation. The Tribunal was provided with evidence that psychological assistance had been sought to assist Miss NXM to deal with menstruation, but that these efforts had been unsuccessful. However, the Tribunal was not provided with evidence from medical or health professionals about the possible aetiology of her problematic behaviours and whether there are other strategies or treatments that could be utilised to deal with those behaviours.

Is the treatment necessary to save Miss NXM’s life or is the treatment necessary to prevent serious damage to Miss NXM’s health?

58. There was no suggestion that the treatment is necessary to save the life of Miss NXM.

59. In considering whether or not the treatment was necessary to prevent serious damage to Miss NXM’s health, the Tribunal took into account the evidence provided in relation to:

• The possibility that Miss NXM is anaemic and the possible effects of that condition;

• The possibility that Miss NXM could slip on pooled blood and the possible risks associated with that;

• The increased risk of infection resulting from the combined effects of menstruation and double incontinence.

60. The Tribunal was satisfied that these issues were important ones for Miss NXM and those treating and caring for her. However, the Tribunal noted that according to evidence, there has been no medical testing as to whether or not Miss NXM has anaemia, despite opportunities to carry out tests when she has been anaesthetised.

61. The Tribunal was not satisfied that these matters are such that they need to be treated to prevent serious damage to Miss NXM’s health.

62. The Tribunal also took into account the evidence regarding Miss NXM’s psychological health including the distress she experiences regarding menstruation and her behaviours which result in limiting her lifestyle.

63. The Tribunal was satisfied on the evidence that Miss NXM is significantly distressed by her periodic bleeding. The Tribunal considered it possible that continued exposure to such distress could cause significant damage to Miss NXM’s psychological health.

64. The Tribunal also considered it possible that limitations placed on Miss NXM’s lifestyle choices as a result of her responses to menstruation could have an effect on her psychological health.

65. The Tribunal was advised that Miss NXM has autistic tendencies, which might explain her behaviours, but the Tribunal was not provided with any comprehensive assessments by mental health professionals explaining the origin and nature of Miss NXM’s behaviours in relation to menstruation.

66. The Tribunal was advised that psychological assistance has been sought to assist Miss NXM to deal with the issue of heightened sensitivity to using a sanitary napkin and to ameliorate her problematic behaviours in response to her menstruation. However the Tribunal was not provided with any reports from health or medical professionals indicating whether other possible treatments exist for her problematic responses and behaviours, or the likely success of those measures.

67. The Tribunal was also not provided with any assessments by health and medical professionals regarding the effects of Miss NXM’s responses to menstruation on her mental health. The Tribunal was satisfied that the evidence establishes that Miss NXM becomes distressed by her menstruation and that her reactions to it cause emotional and social problems for her. However, there was no comprehensive health or medical evidence on the basis of which the Tribunal could be satisfied that these problems are of such magnitude that they require a treatment of the “last resort” to prevent “serious damage” to Miss NXM’s health.

68. In the absence of further evidence in the form of assessments and opinions from mental health professionals, and taking into account the view of the High Court that there are stringent conditions to be met in matters such as these, the Tribunal could not be satisfied that these matters are such that they need to be addressed to prevent “serious harm” to Miss NXM’s mental health.

69. The Tribunal reached its conclusion reluctantly because it was of the opinion that Mr KPM and Mrs MGM have in mind the best interests of Miss NXM and have gone to extraordinary lengths to deal with the issues outlined. However, as outlined above, in this matter the test set out in the Act is not a “best interest” test, but the more stringent test as outlined.

70. Having reached these conclusions, the Tribunal decided to dismiss the application for special medical treatment.

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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