TKN
[2019] NSWCATGD 39
•23 July 2019
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: TKN [2019] NSWCATGD 39 Hearing dates: 23 July 2019 Date of orders: 23 July 2019 Decision date: 23 July 2019 Jurisdiction: Guardianship Division Before: J Moir, Senior Member (Legal)
Dr S L Thompson, Senior Member (Professional)
T Grassi, General Member (Community)Decision: The application for consent to special medical treatment is dismissed after hearing.
Catchwords: CONSENT TO MEDICAL TREATMENT – application for consent to special medical treatment – abdominal hysterectomy – definition of “special medical treatment” under section 33 of the Guardianship Act – evidence that the proposed treatment will not cause permanent infertility as the patient is already permanently infertile – proposed treatment is not special medical treatment – person responsible able to provide consent to major medical treatment – no need for the Tribunal to provide consent – application dismissed.
Legislation Cited: Guardianship Act 1987 (NSW), ss 33, 42(2); Pt 5
Cases Cited: None cited.
Texts Cited: None cited.
Category: Principal judgment Parties: 002: Consent to Special Medical Treatment
TKN (the person)
EQD (applicant)Representation: A Dalupines, separate representative for TKN
File Number(s): NCAT 2019/00108495 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
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TKN is 39 years old and lives with her parents and carers, Mr Z and Mrs Y, in southwest Sydney. TKN is reported to have an intellectual disability.
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On 8 April 2019 the Tribunal received an application for consent to special medical treatment was submitted by EQD, of a public hospital. The proposed treatment is an abdominal hysterectomy, for treatment of large uterine fibroids causing heavy bleeding and anaemia.
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These reasons for decision arise from the hearing of that application.
The hearing
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The hearing was held in Sydney and the Tribunal spoke to the participants by videoconference. The participants were TKN, EQD, Mrs Y, Mr Z, Dr X, Dr W, Neuropsychologist, Ms V, Provisional Neuropsychologist, and Ms Agnes Dalupines, separate representative. The Tribunal was assisted by an Arabic speaking interpreter.
What did the Tribunal have to consider?
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When considering an application for consent to special treatment of the kind proposed, the Tribunal must be satisfied that:
It is appropriate for the treatment to be carried out
The proposed treatment is the most appropriate form of treatment for promoting and maintaining the patient’s health and wellbeing
The proposed treatment is necessary to save the patient’s life or prevent serious damage to health
The proposed treatment complies with any relevant National Health and Medical Research Council guidelines.
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The Tribunal must also have regard to the following matters, as outlined in s 42(2) of the Guardianship Act 1987 (NSW):
the grounds on which it is alleged that the patient is a patient to whom this Part applies,
the particular condition of the patient that requires treatment,
the alternative courses of treatment that are available in relation to that condition,
the general nature and effect of each of those courses of treatment,
the nature and degree of the significant risks (if any) associated with each of those courses of treatment, and
the reasons for which it is proposed that any particular course of treatment should be carried out.
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In considering the above questions, the Tribunal must have regard to the views of TKN, EQD and Mrs Y, who is TKN’s “person responsible” and the objects of Pt 5 of the Guardianship Act.
The proposed treatment
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The Tribunal was told that TKN has large uterine fibroids, which are steadily increasing in size. They had been causing heavy bleeding, leading to anaemia for a number of years, both of which are worsening. The Tribunal was given a number of radiological reports confirming the presence of the fibroids, initially from 2015 and most recently January 2019. The report from the January 2019 pelvic ultrasound states that TKN has a “bulky and heterogeneous uterus with multiple fibroids”. Her uterus is reported to be enlarged and distorted, and the largest of the fibroids is reported to measure 11.6cm by 8.6cm by 10.5cm.
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Letters from Dr X dated 11 April 2019 and 13 June 2019 report that TKN has been attending the gynaecology outpatient clinic since 2015, because of heavy menstrual bleeding due to uterine fibroids. Outpatient Clinic notes confirm this. Dr X states that this heavy bleeding is impacting on TKN’s physical health and her wellbeing and quality of her life. The severity of the bleeding has resulted in numerous presentations to the emergency department, severe anaemia (haemoglobin at times down to 82) and ongoing iron deficiency. Since 2015 the fibroids have more than doubled in size (5.5cm to 11.8cm). Dr X confirmed this evidence at the hearing.
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This evidence also set out the approaches which had been trialled to manage TKN’s heavy bleeding since 2015, without sustained success. These included Implanon implant, hysteroscopic dilatation and curettage, a Mirena device and, the oral contraceptive pill. It also detailed the alternative approaches which had not been tried, as well as an explanation for why these were less desirable and likely to be effective than the proposed treatment. These included endometrial ablation and uterine artery embolization. It was notable that none of the treatments which have not yet been trialled were thought to be likely to be effective in removing or reducing the size of TKN’s fibroids.
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The Tribunal was given a number of letters and reports which addressed the question of TKN’s capacity to consent to the proposed treatment on her own behalf.
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The most direct evidence on this issue is a Neuropsychological assessment dated 10 July 2019 by Ms V, Provisional Clinical Neuropsychologist, and Dr W, Clinical Neuropsychologist. This assessment was conducted specifically in relation to TKN’s capacity to consent to the proposed treatment. A number of psychometric tests were conducted and the assessors concluded that TKN “does not have the capacity to make informed decisions relating to the proposed hysterectomy procedure”.
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This is consistent with the opinion of EQD (email 6 April 2019 and Dr X, (letters 11 April 2019, 13 June 2019 and Clinical notes from April 2018). It is also consistent with TKN’s presentation at the hearing and with the submission of Ms Dalumpines.
Is the proposed treatment ‘special treatment’?
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The first matter which the Tribunal must determine in applications of this kind is whether the proposed treatment is special medical treatment.
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If a person is incapable of giving consent to medical treatment on their own behalf, and “special medical treatment” is proposed, then in accordance with Pt 5 of the Guardianship Act only the Tribunal can provide consent. Special medical treatment is relevantly defined in s 33 of the Guardianship Act as follows:
"special treatment" means:
(a) 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, or
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Therefore, the proposed treatment would fall within the definition of special medical treatment if it was intended or likely to have the effect of rendering TKN permanently infertile. The Tribunal asked Dr X a number of questions to assist in deciding whether the proposed treatment is special medical treatment.
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Dr X told the Tribunal that in his view because of the size of her fibroids, the extent of her bleeding and her age, it is most likely that TKN is already infertile. There is no real chance that she would be able to conceive without intervention. None of the available treatments would address this. On this basis, it was Dr X’s view that in TKN’s case the proposed treatment would not render her permanently infertile because she is most likely already permanently infertile.
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If the proposed treatment is not likely to render TKN permanently infertile because she is already permanently infertile, then it is does not fall within the definition of “special medical treatment”, requiring the Tribunal’s consent. Instead, it falls into the category of major medical treatment. In this case if TKN is unable to consent on her own behalf (and there was no dispute that this was the case), and she does not object to the treatment (which she does not), then someone acting as her person responsible can provide consent on her behalf. The Tribunal noted that Mrs Y is regarded as TKN’s person responsible and that she is therefore able to provide this consent if required.
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Having satisfied itself that the proposed treatment is not special medical treatment, and does not require the Tribunal’s consent, the Tribunal dismissed the application.
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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: 26 September 2022
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