TN - [2012] QCAT 713 | CaseChat AU

CITATION:

TN [2012] QCAT 713

PARTIES:

APPLICATION NUMBER:

GAA5711-12

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

C Endicott, Senior Member

DELIVERED ON:

5 December 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

The Tribunal consents to TN undergoing sterilisation by way of a hysterectomy.

CATCHWORDS:

SPECIAL HEALTH CARE – sterilisation – where severe problems with menstruation – where sterilisation only practical way of overcoming the problems

Guardianship and Administration Act 2000, s 70

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

TN has been diagnosed with Autistic Spectrum Disorder and Compulsive Obsessive Disorder. She has an intellectual disability. TN is 22 years of age and she lives with her mother.
It was reported by Dr Alfred Chung, her treating psychiatrist, that TN has a long standing obsession with her menstruation. She has been trying to stop her menstruation for a long time, regarding the bleeding as messy and as having an unpleasant odour. TN’s obsession has led to her using tampons every day. Dr Chung reported that TN’s obsession had intensified during 2010 and was becoming more and more stressful for her to the extent where she is becoming aggressive towards her family members when they try to intervene.
An application to QCAT was lodged by TN’s mother seeking consent for her daughter to undergo sterilisation as a means to overcome the problems experienced by TN with menstruation. The Tribunal appointed the Adult Guardian as TN’s representative to represent her views, wishes and interests. The Tribunal made directions for specific information to be provided to the Tribunal and held a hearing on 18 October 2012 when the application was discussed with TN’s mother and father and her appointed representative. TN did not take part in that hearing. Following that hearing, further information was provided to the Tribunal and her appointed representative made written submissions in support of the application for consent.
The legislative framework for consent to this type of health care is contained in s 70 of the Guardianship and Administration Act 2000. QCAT can give consent for an adult with impaired capacity to undergo sterilisation if the Tribunal is satisfied that sterilisation is medically necessary or if the adult has problems with menstruation and cessation of menstruation by sterilisation is the only practical way of overcoming the problems. In addition the Tribunal must be satisfied that sterilisation cannot reasonably be postponed and the adult is unlikely in the foreseeable future to have capacity for decisions about sterilisation.
Section 70 also requires the Tribunal to take into account, when deciding whether to consent to a sterilisation procedure, whether there are alternative forms of health care available or likely to become available in the foreseeable future and the nature and extent of short-term or long-term significant risks associated with the proposed procedure and available alternative forms of health care, including other sterilisation procedures.
The first issue to determine is whether TN could make her own decision about undergoing the medical procedure which would result in her sterilisation. The Tribunal had been provided with a report from Dr Chung dated 2 May 2012. Dr Chung confirmed the presence of the diagnosed conditions which are set out in paragraph [1] of these reasons. He reported that the obsessive compulsive disorder is associated with anxiety and emotional distress. Dr Chung reported that TN has a limited understanding of the sterilisation procedure, that she is unaware of sexual issues and that she is not concerned about reproductive issues, apart from stating that she does not want to have children. Dr Chung stated that TN had made a request to remove the cause of her menstrual bleeding.
Dr Chung expressed an opinion that TN could not make any complex decisions due to her intellectual disability.
The applicant provided a report from Dr Gillian van Iddekinge who is TN’s treating obstetrician and gynaecologist. Dr van Iddekinge confirmed that TN has been diagnosed with autistic spectrum disorder and an intellectual disability. Dr van Iddekinge stated that TN does not understand how to manage her periods but she verbalises that she wants the bleeding to stop. Dr van Iddekinge stated an opinion that TN has little understanding of the process of decision making but she is aware of the outcome of the proposed surgery and is able to communicate about this. Dr van Iddekinge expressed the opinion that TN is unable to make decisions freely and voluntarily and that TN cannot make simple or complex decisions about health care due to her intellectual disability.
A further report on TN’s decision making capacity was provided to QCAT by Dr Wuth, the general medical practitioner for TN. Dr Wuth confirmed that TN has been diagnosed with autistic spectrum disorder and with an intellectual disability. Dr Wuth expressed an opinion that TN had little or no understanding of information relevant for decision making about her personal affairs or of the consequences of decision making. Dr Wuth stated that her intellectual disability prevented anything but basic communication about her affairs. Dr Wuth expressed the opinion that TN could not make decisions freely and voluntarily and that she could not make simple or complex decisions due to her intellectual disability.
I am satisfied that the evidence establishes that TN has been diagnosed with autistic spectrum disorder and with an intellectual disability. I also accept the evidence of Dr Chung that he has diagnosed as well an obsessive compulsive disorder.
The Guardianship and Administration Act 2000 defines decision making capacity for a matter as a person being capable of-
(a)understanding the nature and effect of decisions about the matter; and
(b)freely and voluntarily making decisions about the matter; and
(c)communicating the decisions in some way.
I find that as a result of her intellectual disability TN would not be able to understand information about the options available to her to address and overcome the problems she experiences with her menstruation. She would not be able to understand the consequences of rejecting more conservative medical options and of preferring the option of sterilisation as a means of overcoming her distress associated with menstrual bleeding. I am satisfied that the evidence rebuts the presumption that TN has capacity to make her own decision on this issue. I conclude that TN has impaired capacity for decision making about undergoing a medical procedure that will result in her sterilisation.
QCAT has been told that TN was able to manage her periods for a number of years with the use of the oral contraceptive pill. From about 2010, TN became obsessed with the bleeding from her periods and she found it increasingly difficult to manage her periods. She attends respite five times a week while her mother is at work and since her obsession developed, it has been increasingly difficult for her to participate in activities including activities at respite.
TN was referred to Dr Chung for treatment of her obsessive behaviour. She was prescribed medication to assist with the management of her diagnosed obsessive compulsive disorder and associated anxiety and emotional distress. Her behaviour became so difficult that her family considered relinquishing care of TN. TN would yell abuse at her family, constantly asking them when the bleeding would stop, and would throw objects across the room in agitation. TN’s mother considered that the medication administered to respond to the obsessive behaviour was not working.
Attempts were made by her doctors to overcome the difficulties with menstruation with family planning options. Implanon was inserted in conjunction with an oral contraceptive pill but bleeding persisted. TN was then commenced on premarin with the implanon but TN still experienced daily bleeding. Dr van Iddeking had advised that a mirena IUD device was not appropriate for TN who resorted to using tampons every day.
TN was referred to a psychologist to manage her obsessive reaction to menstrual bleeding. Despite at least ten sessions, psychological treatment has not affected TN’s thinking in any way. Dr Chung reported that TN did not respond well to psychotherapy as her cognitive level has not allowed her to respond to the therapy technique.
It was the expressed opinion of her treating doctors, Dr van Iddeking, Dr Wuth and Dr Chung, that the only practicable way to overcome the severe problems that TN experiences with her menstruation is to undergo a hysterectomy which is a procedure that would definitely put an end to her bleeding. All other non invasive methods have been considered. Those methods that have been used have not been effective. Any remaining method has been discounted as not being appropriate for TN or unlikely to be effective given the experiences with usual cohort of conservative methods of menstrual control.
A report was obtained from an independent gynaecologist, Dr Glynis Jones who expressed the opinion that the only guarantee for ceasing menstrual bleeding for TN, given the non effectiveness of other options, would be a hysterectomy. In the opinion of Dr Jones, this procedure is the only way to overcome the menstrual and psychiatric problems experienced by TN.
The representative appointed for TN had spoken to her about this application. It was reported that TN’s views and wishes were supportive of having a hysterectomy. TN stated that she hated the bleeding from her periods. She repeatedly asked ‘why am I bleeding?’ She told the representative that she finds it difficult to participate in any activities at respite as she is constantly running to the toilet to check for blood. She stated that if she had a hysterectomy she would be put to sleep and wake up ‘happy as Larry’.
When asked whether she would like to have children, TN responded that she did not want children. She was aware that her sister had a baby and that she bled from her vagina for six weeks after having the baby. TN told the representative that she did not want to bleed any more. She repeatedly said in a raised voice that she ‘bloody hates it’ and constantly asked when will her periods stop.
The representative reported that TN had become quite agitated when the conversation changed from general issues to discussion about her menstruation. TN was pre-occupied with her menstruation, she found it difficult to discuss any issue unrelated to that topic and she interrupted other conversations to reintroduce the topic. The representative noted that TN manifested an obsession about the sight of blood and her behaviour associated with that obsession focused on changing her tampon constantly to eliminate any risk of sighting of blood.
I accept the evidence presented by the medical witnesses and by TN and her mother. At the hearing on 18 October 2012 it was clear that the applicant had genuinely considered all available options and had formed the view, based on medical advice, that a hysterectomy was the only practicable way of overcoming the severe problems that TN was encountering with her menstruation. I have also reached that conclusion based on a consideration of the evidence.
There was no evidence provided to the Tribunal that there is any reasonable utility in postponing the hysterectomy. TN’s obsessive behaviour is continuing to cause distress to herself and to her family and limits her daily activities. Medication designed to respond to the obsessive compulsive behaviour is not effective and none of the medical witnesses supported any postponement of the recommended procedure.
I have taken into account the alternative forms of health care and I have found that they are not effective for a satisfactory response to TN’s problems. I have also taken into account the risks associated with the proposed hysterectomy. Although there are risks associated with surgery, there was no suggestion that TN was at any additional risk due to her overall medical condition and intellectual disability.
I was satisfied that the Tribunal should give consent to TN undergoing a hysterectomy which would result in her sterilisation.