NXM (No 2)

[2014] NSWCATGD 53

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	NXM (No 2) [2014] NSWCATGD 53
Hearing dates:	25 November 2014
Date of orders:	25 November 2014
Decision date:	25 November 2014
Jurisdiction:	Guardianship Division
Before:	B Tearle, Senior Member (Legal) Dr S Stone, Senior Member (Professional) L Esdaile, General Member (Community)
Decision:	The Tribunal consents to the following special medical treatment being provided to Miss NXM: 1. Hysterectomy with preservation of ovaries under general anaesthetic. 2. 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 2 years from the date of this order.
Catchwords:	SPECIAL MEDICAL TREATMENT – application for consent to special medical treatment – hysterectomy with ovarian conservation – 19-year-old woman – whether treatment necessary to prevent serious damage to patient’s health – alternative treatments contraindicated – consent given
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 45(1) Guardianship Act 1987 (NSW), ss 33(2), 44, 45 Children (Care and Protection) Act 1997 (NSW), s 20B(2A) Children and Young Persons (Care and Protection) Act 1998 (NSW), s 175
Cases Cited:	JLS v JES [1996] NSWSC 217 Secretary, Department of Health and Community Services v. J.W.B. and S.M.B. (Marion's Case) (1992) 106 ALR 385
Category:	Principal judgment
Parties:	Miss NXM (subject person) Dr DVB (applicant) Mr KPM (father, carer, and joined party) Mrs MGM (mother, carer, joined party)
Representation:	Separate Representation: B Sinclair (subject person)   Legal Representation: A Deo (Mr KPM and Mrs MGM)
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 25 November 2014 relating to special medical treatment for Miss NXM.

Application details

1. This was an application by Dr DVB, general practitioner, for consent to special medical treatment for Miss NXM, under section 44 of the Guardianship Act 1987 (NSW).

2. The proposed special medical treatment was a hysterectomy with the preservation of the ovaries, under general anaesthetic.

What the Tribunal decided

3. The Tribunal joined Mr KPM and Mrs MGM, the parents and carers of Miss NXM, as parties to these proceedings.

4. The Tribunal consented to the special medical treatment for Miss NXM as proposed in the application by Dr DVB.

THE EVIDENCE AND THE TRIBUNAL'S REASONING

Reasons for proposed treatment

5. Miss NXM, who is now 19 years old, lives with her parents and carers, Mr KPM and Mrs MGM, in their family home at southwest Sydney. Miss NXM has an intellectual disability, and autism.

6. On 31 July 2014, the Tribunal received an application from Dr DVB, Miss NXM's general practitioner, to consent to a hysterectomy for Miss NXM with the preservation of the ovaries. The proposed treatment was to be performed under general anaesthetic.

7. Dr DVB indicated that her application was prompted by Miss NXM's anxiety and emotional distress associated with her menstruation. Dr DVB stated that Miss NXM experiences menorrhagia, and is unable to manage her periods independently. Miss NXM is unable to maintain personal hygiene during menstruation, and is also at risk of anaemia and associated health problems.

8. The Tribunal on 2 October 2014 ordered that Miss NXM be separately presented in these proceedings. At a later hearing on 23 October 2014, the Tribunal granted leave for Ms Arti Deo, Solicitor, to represent Mr KPM and Mrs MGM in these proceedings.

What did the Tribunal have to decide?

9. If a person is incapable of giving informed consent to special medical treatment, then only the Tribunal may provide consent.

10. Before the Tribunal may give consent to the special treatment proposed for Miss NXM, it must be satisfied that:

• Miss NXM is incapable of giving consent to the proposed special treatment; and

• The proposed special treatment is the most appropriate form of treatment for promoting and maintaining Miss NXM's health and well-being; and

• The treatment is necessary to save Miss NXM's life; or

• The treatment is necessary to prevent serious damage to Miss NXM's health [Guardianship Act, s 45].

Earlier application dismissed on 14 February 2014

11. On 25 November 2013, the former Guardianship Tribunal received an application from Dr KGF, Gynaecologist, for consent to special medical treatment for Miss NXM. The proposed treatment was the removal of Miss NXM's uterus, with conservation of the ovaries.

12. At a hearing conducted on 14 February 2014, the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) dismissed the application Dr KGF had made for consent to special medical treatment. The Tribunal on 14 February 2014 was not satisfied that the proposed treatment was necessary to save Miss NXM's life, or to prevent serious damage to her health. The Tribunal on 14 February 2014 did not have before it any relevant assessments regarding the effects of Miss NXM's responses to menstruation on her mental health. In its written Reasons for that earlier decision, the Tribunal noted that it had reached its conclusion reluctantly.

Conduct of the hearing on 25 November 2014

13. The hearing on 25 November 2014 took place at the Tribunal's Balmain premises, and was conducted by a differently-constituted Tribunal. Miss NXM attended the hearing in person, accompanied by her parents, and by her separate representative, Ms Brae Sinclair, Solicitor. A Support Worker with a respite service provider was present to provide support to Miss NXM.

14. Miss NXM, who is non-verbal, was not able to express a view to the Tribunal, and she left the hearing room soon after the proceedings had commenced. Dr V, Consultant Psychiatrist, advised in a report prepared on 29 April 2014 that Miss NXM has severely impaired communication, but her expressive communication is worse than her receptive communication. Dr V confirmed that Miss NXM has no expressive language. Accordingly, it was not possible for the Tribunal to take account of Miss NXM's views.

15. At the commencement of the hearing, the Tribunal observed that the hearing on 25 November 2014 did not involve an appeal from the earlier decision made on 14 February 2014, and it was not a review of that earlier decision. Instead, the Tribunal on 25 November 2014 was to consider an entirely fresh application for consent to special medical treatment, lodged by Dr DVB.

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

Parties

17. In proceedings before the NCAT, a party has the carriage of that party's case, and is not entitled to be represented by any person. A party may be represented by another person only if the Tribunal grants leave for the person to represent that party. (Civil and Administrative Tribunal Act 2013 (NSW), s 45(1)).

18. As was noted above, at a procedural hearing conducted on 23 October 2014, the Tribunal granted leave for Ms Arti Deo, Solicitor, to represent Mr KPM and Mrs MGM in these proceedings. However, that Tribunal does not appear to have taken the step of joining Mr and Mrs MGM as parties to these proceedings.

19. Given that only parties may be legally represented, the Tribunal considered that it would be in Miss NXM's best interests to remove any possible doubt about the status of her parents in the proceedings. Accordingly, and with the agreement of Mr KPM and Mrs MGM, and of their legal representative, Ms Arti Deo, the Tribunal ordered that Mr KPM and Mrs MGM be joined as parties to the application for consent for special medical treatment for their daughter.

Is Miss NXM able to consent to the proposed special medical treatment?

20. A person is incapable of giving consent to the carrying out of medical or dental treatment if he or she is:

• incapable of understanding the general nature and effect of the proposed treatment; or

• incapable of indicating whether or not he or she consents, or does not consent, to the proposed treatment being carried out (Guardianship Act, section 33(2)).

21. In her application, Dr DVB advised that Miss NXM is not capable of giving consent to the proposed hysterectomy with the preservation of the ovaries, because of her severe intellectual disability. Dr DVB reported that Miss NXM has been assessed as functioning at the level of a person who is 19 months old. Dr DVB confirmed this evidence during the hearing.

22. Dr V, Consultant Psychiatrist, advised in a report prepared on 29 April 2014 that Miss NXM has Chromosome 17 Duplication with Charcot Marie Tooth syndrome, with peripheral neuropathy. Dr V also confirmed that Miss NXM has a severe intellectual disability, and she clearly has autism.

23. Professor W, Consultant Endocrinologist, confirmed in a report prepared on 5 June 2014 that Miss NXM has a severe intellectual disability and autism.

24. The Tribunal accepted the clinical evidence on this issue. Accordingly, the Tribunal found that Miss NXM is not able to consent to the proposed treatment.

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

25. During the hearing, Dr DVB gave evidence that Miss NXM experiences heavy periods with clotting. Miss NXM has no ability to cope with her menstruation, and she experiences significant psychological disturbance during her periods. Dr DVB reported that Miss NXM is in constant distress during her periods.

26. In his written report, Dr V noted that Miss NXM does not cope with menstruation at all. Miss NXM will not wear her pad, and will push her pads out of her underwear. At night, if one spot of blood or urine appears on her sheets, Miss NXM will scream until the sheets are changed. This can result in Miss NXM's bed linen being changed twelve or more times in the one night.

27. Professor W confirmed that Miss NXM cannot stand the sight of blood, and she becomes clearly distressed whenever there is blood staining.

28. Professor W advised that hormonal therapy in an attempt to prevent menstruation would be particularly difficult. Miss NXM dislikes taking medications, and Professor W agreed that there would be an increased risk of deep venous thromboses. Professor W also advised that injectable therapies, such as Depo-Provera, might stop the menstruation, but would also exacerbate the risk of osteoporosis and fractures. Accordingly, those therapies are contraindicated for Miss NXM. Professor W advised that IUDs containing hormones are also contraindicated for Miss NXM. In Professor W's view, there would be no other effective alternative available to Miss NXM, other than a hysterectomy.

29. Dr KGF, the Gynaecologist who had lodged the earlier application for special medical treatment for Miss NXM, prepared a detailed report on 16 June 2014 in which he outlined the evidence for his view that the normal conservative measures to control Miss NXM's menstruation would not be appropriate. In that report, Dr KGF discussed the following alternative treatments:

• the oral contraceptive pill;

• hormonal implants;

• intrauterine contraceptive devices, such as the Mirena; and

• endometrial ablation.

30. In her application, and again during the hearing, Dr DVB also outlined her reasons for forming the view that each of the other possible treatments, including hormone alternatives, endometrial ablation, the oral contraceptive pill, and intrauterine contraceptive devices, would not be appropriate for Miss NXM. Dr DVB’s views were similar to those expressed by Dr KGF and Professor W. Dr DVB concluded that there is no option for Miss NXM other than a hysterectomy.

31. Mrs MGM prepared a report on 19 June 2014 in which she outlined, in very considerable detail, her reasons for favouring a hysterectomy for her daughter. Mrs MGM confirmed that her daughter experiences particularly heavy periods, and Mrs MGM also gave evidence as to the nature and extent of her daughter's distress. Mrs MGM also confirmed that she and her husband are changing their daughter's wet and blood-stained sheets up to 15 times in the one night.

32. Mrs MGM spoke movingly to the Tribunal during the hearing. She confirmed that she and her husband had explored every other possible alternative to the proposed hysterectomy. Mrs MGM said that it would be “an act of cruelty” to allow her daughter to continue to experience her periods. Miss NXM's dignity is being severely compromised. In Mrs MGM's view, the proposed hysterectomy would be in her daughter's best interests physically, psychologically, emotionally, and for the sake of her dignity. Mr KPM also confirmed that he wished to prevent any further damage to his daughter's physical and mental health.

33. On the evidence available to it on 25 November 2014, the Tribunal was satisfied that the proposed hysterectomy with the preservation of the ovaries is the most appropriate form of treatment for promoting and maintaining Miss NXM's health and well-being. The Tribunal attached particular weight to the evidence provided by Dr V, Professor W, and Dr KGF.

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

34. Dr DVB acknowledged that the proposed treatment is not necessary to save Miss NXM's life. However, in her view, it is necessary to prevent serious damage to her health. Dr DVB reported that Miss NXM experiences considerable distress associated with her periods, and is at risk of severe psychological damage, as well as risks of fracture, and anaemia. Dr DVB noted that Miss NXM has a very limited diet, and weighs only 35 kg.

35. In his written report, Dr V stated that Miss NXM's experiences with menstruation heighten her anxiety and distress, and feed into her major behavioural problems. Miss NXM's sleep is severely disturbed, and this will further compromise her mental health. Dr V emphasised the negative impact of menstruation on Miss NXM's mental health. Dr V reported that Miss NXM spends a lot of time in a significant state of emotional distress with heightened anxiety, insomnia and protest behaviours. In Dr V's view, the abolition of menstruation by a hysterectomy would substantially reduce Miss NXM's suffering.

36. Professor W also expressed the view that Miss NXM's psychological health is being seriously damaged. Professor W confirmed that Miss NXM's menstruation is causing serious damage to her psychological health. Professor W strongly supported the proposed hysterectomy for Miss NXM.

37. The Tribunal has found guidance in leading decisions of the High Court, and of the Supreme Court of NSW. Although those decisions related to proposals for sterilisation of a child, the issues are analogous to those before this Tribunal, and the reasoning remains relevant.

38. The High Court has provided guidance as to what is involved in authorising sterilisation in a decision concerning a 14-year-old girl with an intellectual disability:

The function of a court when asked to authorise 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 her or her best interests. But it should be emphasised 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 or that it is certain that no other procedure or treatment will work. The objective to be secured by sterilisation is the welfare of the disabled child. Within that context, it is apparent that sterilisation can only be authorised in the case of a child so disabled that other procedures or treatments are or have proved inadequate, in the sense that they have failed or will not alleviate the situation so that the child can lead a life in keeping with her or her needs and capacities.

It is true that the phrase "best interests of the child" is imprecise, but no more so than the "welfare of the child" and many other concepts with which the courts must grapple. As we have shown, it is confined by the notion of "step of last resort", so that, for example, in the case of a young woman, regard will necessarily be had to the various measures now available for menstrual management and the prevention of pregnancy. And, if authorisation is given, it will not be on 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 her needs and capacities. [Secretary, Department of Health and Community Services v. J.W.B. and S.M.B. (Marion's Case) (1992) 106 ALR 385, 412, Mason CJ, Dawson, Toohey and Gaudron JJ]

39. The view of the High Court would seem to be that a Court must be satisfied that alternative and less invasive procedures have been tried and failed, or that no other procedure or treatment will work.

40. The NSW Supreme Court discussed the common law test for necessity in a case involving an application for consent to an abdominal hysterectomy for a 14-year-old girl. (JLS v JES [1996] NSWSC 217, Bryson J, 21 June 1996). Under section 20B(2A) of the Children (Care and Protection) Act 1997 (NSW), the Court could not give consent unless the treatment was necessary in order to save the child's life, or prevent serious damage to the child's health.

41. Justice Bryson observed that this means that the Court may not give consent on grounds related only to views about the child's management and social integration, or to perceptions of the child's well-being that are not related to the prevention of serious damage to the child's health. The test to be applied is stringent:

Perceptions of wider interests of society are not relevant for the question of necessity…Considerations of the convenience of management and amenity of the child's life and circumstances cannot lead to a consent and at the most they may form context and circumstances within which to appraise the child's health and possible causes of damage to it.[ JLS v JES [1996] NSWSC 217]

42. The Tribunal records that section 20B of the Children (Care and Protection) Act has since been repealed. Its equivalent provision is section 175 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

43. Ms Brae Sinclair, Miss NXM's separate representative, advised the Tribunal to provide consent for the proposed special medical treatment. The Tribunal accepted Ms Sinclair's advice.

44. The Tribunal noted that the condition to be treated impacts significantly on Miss NXM's life, and is a source of serious distress to her. The Tribunal was satisfied that there would be serious damage to Miss NXM's emotional and psychological health if she did not undergo the proposed hysterectomy. The Tribunal was also satisfied that, without the proposed treatment, Miss NXM would continue to experience significant anxiety and distress.

45. In reaching its decision, the Tribunal took proper account of the seriousness, and the extreme consequences, of consenting to the application before it. If the proposed special medical treatment were to take place, Miss NXM would permanently lose her reproductive capacity. Nevertheless, the Tribunal found guidance in the reasoning of Justice Bryson in the decision of JLS v JES, referred to above. The Tribunal found, as did Justice Bryson in the case before him, and now adopts Justice Bryson's own words, that Miss NXM's disabilities are so great that, if the proposed procedure did not take place, Miss NXM could not ever exercise her reproductive capacity with any understanding of what was taking place, still less with any of the self-realisation which comes with such understanding.

42. On the evidence before it, the Tribunal found that the proposed special medical treatment is necessary to prevent serious damage to Miss NXM's health.

Consent given

47. The criteria established by Parliament in s 45 of the Guardianship Act have been met. Accordingly, the Tribunal could lawfully provide consent for the proposed special medical treatment.

48. The Tribunal consented to the special medical treatment for Miss NXM as proposed in the application by Dr DVB. The Tribunal's consent is valid for a period of two years.

FORMAL FINDINGS

1. The Tribunal made the following formal findings:

2. Miss NXM is incapable of giving consent to the proposed special treatment.

3. The proposed special treatment is the most appropriate form of treatment for promoting and maintaining Miss NXM's health and well-being.

4. The proposed special treatment is not necessary to save Miss NXM's life.

5. The proposed special treatment is necessary to prevent serious damage to Miss NXM's health.

**********

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