SFB

Case •

[2016] NSWCATGD 60

•

25 July 2016

No judgment structure available for this case.

NSW Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: SFB [2016] NSWCATGD 60
Hearing dates:25 July 2016
Date of orders: 25 July 2016
Decision date: 25 July 2016
Jurisdiction:Guardianship Division
Before: A Beckett, 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 TYH in respect of Miss SFB is dismissed

Catchwords: SPECIAL MEDICAL TREATMENT – application for consent to special medical treatment – 30-year-old woman – whether laparotomy myomectomy is considered special medical treatment under s 33 Guardianship Act 1987 (NSW) – application dismissed
Legislation Cited: Guardianship Act 1987 (NSW), ss 33, 37
Category:Principal judgment
Parties: Miss SFB (subject person)
Dr TYH (applicant)
Representation: Separate Representation:
J Kwan (subject person)
File Number(s):62059
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

What the Tribunal Decided

  1. The Tribunal dismissed the application.

Background

  1. Miss SFB, 30 years old, lives with her parents in southwest Sydney.

  2. On 10 March 2016, Dr CZU, obstetrics registrar at a public hospital, applied to the Tribunal for consent to special medical treatment of Miss SFB.

  3. This hearing was convened to deal with that application.

  4. Prior to the hearing, the following occurred:

  • The Tribunal recognised Dr HAN, obstetrician/gynaecologist and, later, Dr TYH, senior registrar at the public hospital, as the substitute applicant.

  • At a directions hearing on 12 May 2016, the Tribunal ordered that a separate representative be appointed for Miss SFB.

  • A hearing scheduled for 29 June 2016 was adjourned so that the hearing could be held at a venue closer to Miss SFB.

The hearing

  1. At the end of these Reasons for Decision is a list of the witnesses who participated in the hearing. [Appendix removed for publication.]

What did the Tribunal have to decide?

  1. The Tribunal has to determine if the proposed treatment is special medical treatment under the relevant legislation.

  2. If a person is incapable of giving informed consent to special medical treatment then only the Tribunal can provide consent.

  3. Before the Tribunal can give consent to any special treatment proposed for Miss SFB, it must be satisfied that:

  • Miss SFB 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 SFB’s health and well-being; and

  • the treatment is necessary to save Miss SFB’s life or to prevent serious damage to Miss SFB’s health.

Is the proposed treatment ‘special treatment’?

  1. The original application described the proposed treatment as “laparotomy myomectomy +/- hysterectomy”.

  2. Myomectomy is the surgical removal of uterine fibroids. In contrast to a hysterectomy the uterus remains preserved and the woman retains her reproductive potential.

  3. Section 33 of the Guardianship Act 1987 (NSW) (the Act) provides that special treatment includes 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.

  4. According to this definition, hysterectomy is special treatment. A myomectomy is not.

  5. Dr TYH confirmed at the hearing that the proposed treatment is laparotomy myomectomy only. There is no proposal to perform a hysterectomy on Miss SFB.

  6. Dr TYH explained that, as with other surgeries, it is possible that the surgeon may be required to perform other procedures because of urgent or life-threatening situations that arise during the surgery. For example, if Miss SFB’s life is threatened by uncontrolled uterine bleeding it may be necessary for the surgeon to perform a hysterectomy.

  7. Section 37 of the Act authorises a medical practitioner to carry out medical treatment on a patient without prior consent when it is necessary, as a matter of urgency, to save the patient’s life or to prevent serious damage to the patient’s health.

  8. This means that the surgeon performing the myomectomy on Miss SFB may perform other medical treatment on her, including a hysterectomy, if such treatment becomes necessary as a matter of urgency to save her life or to prevent serious damage to her health.

  9. At present, however, no such other treatment is proposed for Miss SFB. The only proposed treatment is laparotomy myomectomy under general anaesthetic. As this is major medical treatment and not special treatment Miss SFB’s parents have legal authority under the Act to make consent decisions regarding the proposed treatment as her person is responsible.

  10. The Tribunal dismissed the application on the basis that the proposed medical treatment is not special treatment. In these circumstances it was not necessary for the Tribunal to determine the other questions detailed above.

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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: 17 May 2017

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