SKZ

[2021] NSWCATGD 39

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

SKZ [2021] NSWCATGD 39

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 SKZ:

laparoscopic right oophorectomy and cystectomy and bilateral salpingectomy under a 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.

This consent is effective even though SKZ objects to the treatment.

Catchwords:

CONSENT TO MEDICAL TREATMENT – application for consent to special medical treatment – laparoscopic right oophorectomy and cystectomy and bilateral salpingectomy – 48-year-old woman – ovarian cyst – intellectual disability – 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 – consent is effective even if the patient objects to the treatment.

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:

002: Consent to Special Medical Treatment

SKZ (the person)
EAF (applicant)
BYT (carer)

Representation:

U Okereke, separate representative for SKZ

File Number(s):

NCAT 2021/00233858

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. SKZ is 48 years old and lives in South Sydney NSW in a group home managed by a disability service provider.

2. The Tribunal received an application seeking consent to medical treatment for SKZ. The applicant was EAF who advised that the proposed treatment was a laparoscopic cystectomy and unilateral oophorectomy and bilateral salpingectomy. EAF indicates that the proposed treatment is special medical treatment, and that SKZ was not able to understand the proposed treatment.

3. On 17 August 2021 the Tribunal ordered that SKZ be separately represented in respect of the application. Ms Uchenna Okereke appeared as the separate representative.

The hearing

4. 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?

5. 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”

6. 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.

7. 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).

8. 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.

9. 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.

10. 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 SKZ incapable of giving consent to the proposed special treatment?

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

4. Is the proposed special treatment the most appropriate form of treatment for promoting and maintaining SKZ’s health and wellbeing?

Is the proposed treatment 'special treatment'?

11. 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.

12. EAF advised that the removal of one ovary and the cyst was in itself not likely to render SKZ infertile. However, he proposed that he also perform a salpingectomy to prevent pregnancy. He said that SKZ has previously had an endometrial ablation that was performed as an emergency in 2020. That procedure would have significantly reduced SKZ’s chances of pregnancy to less than 1%. However, because of the endometrial ablation, if she were to become pregnant there is a significant risk of dangerous complications. EAF proposed that the salpingectomy was appropriate to ensure that SKZ does not become pregnant and to avoid the risks to her if she were to do so. He also indicated that there is some evidence that ovarian cancer could commence in the fallopian tubes and therefore if they are not needed, they should be removed.

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

Is SKZ incapable of providing consent to the proposed treatment?

14. 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.

15. EAF indicates in his application that SKZ is not able to understand the nature and effect of the treatment. We were not provided with any formal assessments of SKZ’s capacity. In concluding that SKZ was not able to provide consent we considered the following:

1. Ms Z, who is the manager at SKZ’s group home confirmed that SKZ is a participant in the National Disability Insurance Scheme due to her intellectual disability.

2. Ms Okereke said that she had discussed the proposed procedures with SKZ and whilst SKZ indicated some level of understanding about the procedure, she looked to her mother when she was asked to express a view and was not able to provide answers when asked specific questions about the proposed procedure. When spoken to just prior to the hearing SKZ had said that she did not know about the proposed procedure and that she did not want it.

3. We asked SKZ to tell us about her pain and she described it as being “a bit sore”. We asked her to tell us what she had discussed with EAF and her comment was to the effect that she had talked about “getting it out”. She did not provide any more detailed description of the proposed treatment or its reasons.

16. We were satisfied that SKZ 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?

17. EAF said that SKZ has an ovarian cyst that causes pain and needs to be removed. The cyst is growing and there is a chance that it could be a cancer. Histology to assess the nature of the mass could only be undertaken after surgery. SKZ has also had a previous endometrial ablation that was conducted without the usual accompanying salpingectomy which results in a significant risk if she were to become pregnant. Whilst the chance of SKZ becoming pregnant at the age of 48 was low, the risk to her of pregnancy was high because of the endometrial ablation. Hence EAF recommends the removal of the fallopian tubes to prevent pregnancy.

What are the alternative options for treatment that are available?

18. EAF indicated that:

1. In terms of contraception to prevent the serious risks that pregnancy would cause, the use of Depo-Provera would be an alternative. However, that can cause problems with bone mineral density. A Mirena device is also used to prevent pregnancy, but in the case of SKZ the endometrial ablation results in there being nowhere to implant the Mirena device. He was of the view that the use of oral contraceptive was not appropriate because of increased risks of blood clots and that the use of condoms was inadequate protection since it would require SKZ to initiate its use.

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

19. The treatment is proposed to remove the cyst to reduce pain as well as to address the risk that the mass is a cancer. The salpingectomy is to prevent the risk of pregnancy. In EAF's view, whilst he would not normally recommend the salpingectomy for contraceptive purposes, it is usual that the procedure is performed at the time of an endometrial ablation and the fact that it was not performed in SKZ’s case exposes her to a danger that can be remedied by performing the salpingectomy at the same time as he performs the unilateral oophorectomy to remove the cyst.

20. EAF said that he had asked SKZ’s mother whether SKZ was sexually active and her mother was not able to answer. During the hearing Ms Z, group home manager, said that SKZ is not sexually active. She shares her home with one male resident and four female residents. Prior to the COVID-19 lockdowns she attended a day program three times a week and spent every second weekend at home.

21. EAF was of the view that whilst the chance of SKZ becoming pregnant is low, the risk of harm if she were to become pregnant is high because of the endometrial ablation.

Are there any risks associated with the proposed treatment?

22. EAF indicated that the usual risks of anaesthetic apply to the procedure.

23. Ms Okereke said that BYT, who is the mother of SKZ, had advised that SKZ has had a pericardial effusion and has heart palpitations. She is prescribed blood thinners. EAF said that these matters have been discussed between SKZ’s GP and the anaesthetist.

24. EAF opined that there is no added risk caused by performing the salpingectomy in addition to the oophorectomy.

25. 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?

26. BYT said that she was in favour of SKZ having the procedure. She said that she believes that SKZ also wants the procedure though she becomes frightened when the word "operation" is used. She was in favour of the two procedures being performed to reduce the possibility that future surgery would be required.

27. Ms Okereke was of the view that the removal of the cyst and ovary was necessary and appropriate. However, she was not of that view regarding the salpingectomy due to the low risk that SKZ would become pregnant, as she was described as not being sexually active and she is aged 48.

28. We carefully considered Ms Okereke's view. However we are persuaded that whilst the salpingectomy might not be considered appropriate if surgery were not being performed, in which case alternative contraceptives might be more appropriate, under the circumstances applying to SKZ, as the removal of the ovary and cyst are necessary and the risk is not increased by performing the salpingectomy, the latter is appropriate having regard to the serious risk of harm that would result from the albeit low risk of pregnancy. Accordingly, we were satisfied that the proposed treatment it is the most appropriate treatment.

How will the proposed treatment promote and maintain the patient's health and wellbeing?

29. We are satisfied on the evidence that the cystectomy and unilateral oophorectomy are necessary to reduce pain experienced by SKZ and to prevent further physical complications resulting from the cyst as well as to perform assessments to rule out the possibility that it is cancerous. We are also satisfied that the salpingectomy will promote SKZ’s health and wellbeing by preventing pregnancy that would expose her to serious risk.

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

30. We are satisfied that the cystectomy and unilateral oophorectomy are necessary to prevent serious risk to SKZ’s health caused by cyst and to address the pain resulting from the cyst. Whilst SKZ’s circumstances are such that the chance of pregnancy is low, we are satisfied that the serious risk posed by a pregnancy and the inappropriateness of other forms of contraception as well as the lack of additional risk resulting from performing the salpingectomy at that time of the cystectomy and oophorectomy are such that it is necessary to prevent a serious risk to SKZ’s health.

Is SKZ objecting to the procedure?

31. SKZ did not express a view during the hearing. However as noted above, according to Ms Okereke, SKZ’s attitude has been variable. SKZ’s mother is of the view that any resistance to the operation is due to a fear of an operation as such, rather than an understanding of the proposed procedure or an objection to it in particular. We are satisfied that SKZ lacks an understanding of the procedure. Should she be taken to object to the procedure we are satisfied that the objection is in the absence of an understanding of the procedure or its advantages and disadvantages and that her objections can be overruled as the Tribunal has considered the proposed procedures and provided consent despite any objection.

Conclusion

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

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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