OZB

[2021] NSWCATGD 40

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

OZB [2021] NSWCATGD 40

Hearing dates:

19 August 2021

Date of orders:

19 August 2021

Decision date:

19 August 2021

Jurisdiction:

Guardianship Division

Before:

R H Booby, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
S Johnston, General Member (Community)

Decision:

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

total abdominal hysterectomy and bilateral salpingectomy and if required oophorectomy 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 six month(s) from the date of this order.

Catchwords:

CONSENT TO MEDICAL TREATMENT – application for consent to special medical treatment – total abdominal hysterectomy and bilateral salpingectomy – oophorectomy – 32-year-old woman – intellectual disability – large abdominal mass – 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, 33(1)–(2), 36(1)(b), 42, 44, 45(2)

Cases Cited:

None cited.

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

003: Consent to Special Medical Treatment

OZB (the person)
SAC (applicant)
AYC (carer)
OYF (carer)

Representation:

U Okereke, separate representative for OZB

File Number(s):

NCAT 2017/00340425

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. OZB is 32 years old and lives in regional NSW with her mother, AYC, and siblings, SAC and OYF.

2. On 23 January 2018 the Tribunal made a guardianship order appointing SAC as OZB's guardian for one year to advocate for her with particular reference to any application for citizenship or other dealings with the Department of Immigration. The order was to expire without review.

3. On 23 January 2018 the Tribunal dismissed an application seeking a financial management order for OZB.

4. On 6 August 2021 the Tribunal received an application seeking consent to medical treatment for OZB. The applicant was SAC who advised that the proposed treatment was a total abdominal hysterectomy and bilateral salpingectomy plus or minus oophorectomy. In the application SAC indicates that the proposed treatment is special medical treatment, and that OZB was not able to understand the proposed treatment.

5. On 11 August 2021 the Tribunal ordered that OZB be separately represented in respect of the application. Ms Uchenna Okereke appeared as the separate representative.

The hearing

6. 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.]

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 of that Act. 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 OZB incapable of giving consent to the proposed special treatment?

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

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

Is the proposed treatment ‘special treatment’?

13. Of relevance to the current application, special medical treatment is defined in s 33 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.

14. We were satisfied that the proposed treatment is likely to have the effect of rendering OZB permanently infertile and therefore it is special medical treatment.

Is OZB incapable of providing consent to the proposed treatment?

15. Section 33(2) of the Guardianship 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.

16. The Reasons for Decision of the Tribunal upon making the guardianship order indicates that the Tribunal accepted evidence to the effect that OZB was visually impaired and that tests of her cognitive ability and adaptive functioning indicated that she had impaired abilities.

17. In the application OZB is described as having an intellectual disability and vision impairment.

18. In a Health Professional Report Form for Special Treatment, Dr Z, an Obstetrician and Gynaecolgist, expresses the view that OZB is not able to consent to the treatment due to a severe cognitive deficit. During the hearing Dr Z confirmed that view.

19. OZB was not able to describe the procedure. Ms Okereke said that she had spoken to her about the procedure, and she said that she wanted it to proceed because she thought she would feel better after it.

20. We were satisfied that whilst OZB understood that the procedure could reduce her pain, she did not properly understand the nature of the treatment or the reasons for it and was not able to understand and weigh up the advantages and disadvantages for the treatment. Accordingly, we were satisfied that she could not provide informed consent to the procedure.

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

21. Dr Z said that OZB has a large mass in her abdomen/uterus that has the appearance of an eighth month of pregnancy. Its size is unusual in a person of OZB's age. The mass causes pain, heavy bleeding and a frequent need to urinate. If untreated, in addition to pain and adverse effects on the urological system, it could cause a haemorrhage and bowel problems.

22. Dr Z also indicated that whilst it is thought the mass is a fibroid, there is a chance that it could be cancerous, and it was not possible to evaluate its nature without surgery. In her view this possibility indicates that the need for surgery is urgent.

What are the alternative options for treatment that are available?

23. Dr Z indicated that:

1. The mass has been increasing in size.

2. In some cases of heavy bleeding, it could be possible to utilise other treatments. However, given the size of the mass, and the risk of damage to other organs and systems, and the risk that the mass might be malignant, there was no alternative treatment.

3. The size of the mass was such that it was not possible to remove it without rendering OZB infertile by removing her uterus. The removal of the fallopian tubes is a necessary adjunct to the treatment to reduce the risk of ovarian cancer and is appropriate since once the uterus is removed the fallopian tubes have no utility.

4. An assessment of the whether the ovaries were normal would be conducted during the surgery. If possible, the ovaries would not be removed as this was better for the hormonal system.

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

24. The treatment is proposed to remove the large mass to reduce pain and to reduce the risk of damage to other organs and bodily systems as well as to address the risk that the mass is a cancer.

Are there any risks associated with the proposed treatment?

25. In the Health Professional Report and during the hearing, Dr Z indicated that the following risks apply to the treatment:

1. Risks of surgery including haemorrhage, coagulation, and anaphylaxis.

2. An increased risk of anaesthesia applies because OZB has epilepsy. Dr Z indicated that an assessment of the risk would be conducted at a pre-admission clinic.

3. There are risks to OZB's emotional and psychological health resulting from her intellectual disability and vision impairment. For this reason, it would be appropriate for a support person to be with her around the time of the procedure.

4. Due to OZB's circumstances, there could be an increased risk of post operative complications and for this reason she might need to be cared for in the high dependency unit following the procedure.

26. We are satisfied that the risks of the procedure are not greater than is reasonable having regard to the risks of not carrying out the procedure, and that adequate consideration has been given to ameliorating those risks.

Is the proposed treatment the most appropriate treatment?

27. OZB's mother said that she was in favour of OZB having the procedure and SAC also indicated her support for the procedure, saying that she and her mother had both had a similar condition and similar surgery.

28. Ms Uchenna Okereke said that in her view the surgery should proceed as the most appropriate way to address OZB's condition.

29. We are of the view 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 the treatment is necessary to reduce pain experienced by OZB and to prevent damage to her organs and other bodily systems and will therefore promote her health and wellbeing.

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

31. We are satisfied that the treatment is necessary to prevent serious damage to OZB's health caused by the effect of the large mass on her organs and bodily systems and to address the pain and its resultant effects on her psychological and emotional health.

Conclusion

32. Taking into account all of the matters set out above we consented to the proposed treatment.

**********

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: 06 October 2022