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

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

Application details

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.
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

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

BACKGROUND

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: NXM [2014] NSWCATGD 52
Case: [2014] NSWCATGD 52
Decision Date: 04 March 2014

CaseChat Overview and Summary

In the case of NXM, the applicant, Dr KGF, sought consent from the Court for special medical treatment in the form of a hysterectomy with ovarian conservation. The respondent, an 18-year-old woman identified as NXM, opposed the application. The dispute was heard in the Supreme Court of New South Wales. The court was required to determine whether the proposed treatment was necessary to save NXM's life or to prevent serious damage to her health, as required by section 45(2) of the Guardianship Act 1987 (NSW).

The court examined the medical evidence provided by Dr KGF and weighed it against the respondent's opposition to the treatment. The medical evidence suggested that the treatment was necessary to prevent serious damage to NXM's health, given her medical condition. However, the court also considered NXM's capacity to make an informed decision about her treatment and her expressed wishes regarding the proposed procedure. Ultimately, the court found that the treatment was not necessary to save NXM's life or to prevent serious damage to her health, taking into account her capacity and wishes. As a result, the application for consent to the special medical treatment was dismissed.

Orders

Orders of the court

1. The application for consent to special medical treatment made by Dr KGF in respect of Miss NXM is dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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)).