UHM (Medical Consent)
[2011] TASGAB 12
•20 July 2011
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
UHM – Application for consent to medical treatment by the Royal Hobart Hospital
Neutral citation: UHM (Medical Consent) [2011] TASGAB 12
REASONS FOR DECISION
Anita Smith (President)
Martin Morrissey (Member)
Catherine Gavan (Member)
Consent to medical treatment – nature of special treatments and sterilisation – incapacity – whether treatment in the best interests of the person
Guardianship and Administration Act 1995 sections 3, 6, 36, 44, 45
Guardianship and Administration Regulations 2008 regulation 9
UHM is a 42 year old unemployed woman who lives with a male flat mate. She assists her mother to care for her maternal grandmother. UHM unfortunately developed uterine fibroids to such extent that her uterus was 10 to 12 times the size of a normal uterus. The treatment recommended for this condition was an abdominal hysterectomy. UHM and her mother were supportive of the proposed treatment. However when the treatment was scheduled on 1 March 2011, treating specialist Dr Patel cancelled the surgery because he was concerned that UHM did not have the requisite capacity to understand the nature and effect of the treatment. Because of the status of the treatment as a ‘special treatment’, an application was made to the Board to consent to the treatment on her behalf.
The Board made a determination to consent to the treatment on 15th June 2011 after an investigation and hearing. On 30th June 2011, UHM’s mother, LI, requested a statement of reasons for the Board’s determination for personal reasons. She has indicated that, consistent with hers and UHM’s desire to have the procedure performed as quickly as possible, she has not sought the statement of reasons with a view to triggering an appeal against the Board’s decision or to extending the appeal period referred to in clause 2 of the Board’s determination.
Special treatments and the reason for the application:
The Guardianship and Administration Act 1995 (the Act) includes in the definition of special treatment “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.” As an abdominal hysterectomy has the effect of rendering a person permanently infertile, it is a special treatment.
Special treatments are a group of particular medical treatments that have a special status under law. There is no clinical relationship between the special treatments listed in the Act and the Regulations which includes terminations of pregnancy, psychosurgery and treatment with physically aversive stimulus. The relationship between special treatments is an historical one arising from poor institutional practices perpetrated upon people with disabilities. Prior to the introduction of the Act, various reports noted concerns along the following lines:
“that non-therapeutic sterilizations are being performed on intellectually handicapped people without their informed consent or even their knowledge. Such action constitutes a serious denial of their civil liberties and appears to be carried out in disregard for the considerable psychological stress that can be caused.”[1]
[1] See Discrimination and Intellectual Handicap Anti Discrimination Board (NSW) Govt Printer NSW 1981
In Marion’s case[2], the High Court of Australia approved of the following analysis of by Lord Brandon as to the special nature of sterilization operations:
“These features [of sterilization] are: first, the operation will in most cases be irreversible; secondly, by reason of the general irreversibility of the operation, the almost certain result of it will be to deprive the woman concerned of what is widely, and as I think rightly, regarded as one of the fundamental rights of a woman, namely, the right to bear children; thirdly, the deprivation of that right gives rise to moral and emotional considerations to which many people attach great importance; fourthly, if the question whether the operation is in the best interests of the woman is left to be decided without the involvement of the court, there may be a greater risk of it being decided wrongly, or at least of it being thought to have been decided wrongly; fifthly, if there is no involvement of the court, there is a risk of the operation being carried out for improper reasons or with improper motives; and, sixthly, involvement of the court in the decision to operate, if that is the decision reached, should serve to protect the doctor or doctors who perform the operation, and any others who may be concerned in it, from subsequent adverse criticisms or claims.”
[2] Department of Health & Community Services v JWB & SMB ("Marion's Case") [1992] HCA 15; (1992) 175 CLR 218 (6 May 1992)
It is not the case here that the procedure is non-therapeutic, nor that it was intended to be done without UHM’s consent. However, in 1997 the Tasmanian Parliament addressed the concerns raised in various historical reports and in Marion’s case by deeming sterilisations to be a special treatment and giving the Board jurisdiction to authorise such procedures. The definition of special treatment is broad and includes procedures carried out for therapeutic purposes. LI was critical of the applicants for bringing the application, however, as the law in this area is now so strict, once the team at the Royal Hobart Hospital had doubts about UHM’s capacity to fully understand the procedure, their only choice was to make the application to the Board or to deny her the procedure. As the latter option was no option at all, they literally had no choice. To have made the application is consistent with the professional responsibilities of medical practitioners.
The hearing process:
In accordance with the AGAC Protocol for Special Medical Procedures 2003 the Public Guardian was asked by letter dated 27 April 2011 to investigate the application and in particular to:
(1) Contact UHM and her mother to inform them, preferably in person, of their right to seek a further assessment of capacity if they believe the current assessment is in error.
(2) Advise UHM that she may have representation from the Legal Aid Commission or Advocacy Tasmania to assist in the hearing if she should wish.
(3) Ascertain from the applicant and the nominated parties whether there are any other persons who should be invited to participate in the hearing as an ‘interested party’.
The Public Guardian provided a report to the Board on 10 May 2011. The Public Guardian confirmed that the materials in the application were accurately presented. The Public Guardian also indicated that UHM declined to seek further opinions or to have representation and would not be participating in the hearing.
The hearing was convened on 15 June 2011. In attendance were:
Tracey Turner – RHH Social Worker and applicant
Lee Perry – GAB Officer
Michael Condon – Public Guardian’s delegate
Christie Clements – Observer, Legal Practice Course
Dr Raymond provided information about the procedure via telephone for part of the hearing. The Board addressed the legal criteria set out in Part 6 of the Act for the Board to give its consent to medical treatment, including special treatment. Those criteria are set out in bold headings below together with the conclusions that the Board came to with respect to each criterion.
Section 44(1) – Does the applicant have a proper interest in the matter?
The applicant, the Royal Hobart Hospital, is the facility within which the proposed procedure would be carried out. The Hospital has an interest in ensuring that medical procedures carried out in that facility are carried out in compliance with the law and medical professional responsibilities. Therefore the Board concluded that the applicant has a proper interest in the matter.
Section 45(1)(a) – Is the medical treatment otherwise lawful?
Where a woman has capacity to consent to an abdominal hysterectomy, the procedure is lawful. Therefore if UHM had capacity to consent, the procedure would be lawful. If she does not, the Board can give consent on her behalf and the procedure would also be lawful.
Section 3 and 36(1) - Does UHM have a disability?
Dr Jan Martin provided to the Board a report in the standard Health Care Professional Report format provided by the Board. Dr Martin is a psychologist. She assessed UHM as having an intellectual disability, this based on an FSIQ assessed at 60 or in other words an intelligence quotient (IQ) below the first percentile of the general population. The Board concluded from that unchallenged opinion, that UHM has an intellectual disability which results in ‘a restriction or lack of ability to perform an activity in a normal manner’ and therefore meets the threshold of the definition in the Act.
Sections 36 and 45(1)(b) - Is UHM incapable of understanding the general nature and effect of the proposed treatment?
Dr Martin reported that UHM’s degree of understanding of the proposed treatment was ‘superficial and concrete.’ She stated that UHM did not understand why the surgery was needed, what the consequences of not having the surgery might be or what the risks and benefits are in having the surgery. According to Dr Martin, UHM had accepted the need for surgery without question. Dr Martin’s observations were consistent with the observations in the Public Guardian’s report. The Public Guardian’s delegate had prepared a list of interview questions prior to his visit to her home on 13 May 2011, but noted: “It quickly became obvious that UHM would be unable to answer the list of questions I had for her.”
The applicant noted that LI had a different perception of UHM’s capacity to make decisions. She reportedly told the applicant that UHM is “bright and intelligent” and her disability only related to speech and communication issues. As noted above, UHM was offered an opportunity by the Public Guardian to seek an alternative assessment but declined to take that course.
The Board concluded that UHM lacks capacity by reason of her intellectual disability to understand the general nature and effect of the proposed treatment.
DETERMINING BEST INTERESTS:
Sections 6 and 45(2)(a) – What are UHM’s wishes?
UHM’s wishes were consistently recorded in all documentation – to have the procedure and to have it over with as quickly as possible. According to the reports, UHM is celibate and a virgin; she has a boyfriend but told the Public Guardian’s delegate that she does not have sex with him as he is “too old”. She informed the delegate that she has no intention of having sex in the future and has no interest in having children.
Section 45(2)(b) – What are the consequences to UHM if the proposed treatment is not carried out?
The application and Dr Raymond in the hearing stated that without the procedure the fibroids will grow and may fill UHM’s abdomen. She will have increasing problems with menstruation, in particular her periods will be heavier and prolonged. There is a less than 1% risk that the fibroids may become malignant if left untreated. There is also a probability that a failure to remove the fibroids would render UHM infertile in any event.
Section 45(2)(c) – Are there any alternative treatments available to UHM?
Because of the size of the fibroids, treatments with magnetic resonance guided focused ultrasound that may be available for persons with smaller fibroids are not available for UHM. Treatment with the oral contraceptive pill might reduce the problems with menstruation, but would not address the continued growth of the fibroids.
Section 45(2)(d) – Can the proposed treatment be postponed on the grounds that better treatment may become available?
UHM’s fibroids have developed rapidly. Between August 2009 and September 2010 the fibroids had increased in volume by 70%. There was no evidence of any medical trials or alternative procedures in development. Therefore there is no prospect before the Board that the procedure could be postponed. Additionally, this would be contrary to UHM’s clearly stated wishes.
Regulation 9(f)(ii) – Are there risks in carrying out the proposed treatment?
The operation involves the administration of a full anaesthetic. UHM will have a catheter on the first night after surgery. Pelvic surgery carries a risk of deep vein thrombosis. As with any abdominal surgery there is a possibility of haemorrhage or damage to the bladder or post-operative infection. Any damage or haemorrhage would be dealt with in the surgical procedure and an infection would be treated with antibiotics. If all goes well, she will remain in the hospital for four days after the operation. Her mother will be with her in the hospital and will provide after care. There will also be a 6 week follow up appointment. UHM is at no greater risk of any of these complications arising than any patient without her disability. The Board considers there are far greater risks in not having the procedure than in having the procedure.
Conclusion regarding UHM’s best interests:
Given all of the above, the Board is in no doubt that having an abdominal hysterectomy is in UHM’s best interests. The Board consents to the removal of UHM’s uterus and cervix. That consent will be valid for 6 months. The Board has sought a post operative report and a second report after the 6 week follow up. The evidence did not support the Board making an order that the treatment was required urgently. Therefore the Board’s consent to medical treatment has no effect until the period of appeal under section 76 has expired or, if an appeal has been instituted, it is set aside, withdrawn or dismissed.
After hearing an application pursuant to section 44 of the Act made by Tracey Turner, Social Worker, Royal Hobart Hospital, dated 19 April 2011 for the consent of the Board to special treatment for UHM (hereafter ‘the person’)
The Board is satisfied, in accordance with section 45 that:
· the medical treatment is otherwise lawful, and
· the person is incapable of giving consent to the medical treatment, and
· the medical treatment would be in the person’s best interests.
THE BOARD hereby consents to special treatment for the person comprising a general anaesthetic and total abdominal hysterectomy.
THE BOARD FURTHER ORDERS
1. That this consent remains valid until 14 December 2011.
2. That this consent does not take effect until the appeal period under section 76 has expired or, if an appeal has been instituted, it is set aside, withdrawn or dismissed.
3. That, as soon as possible after each event, the treating practitioner provides a post operative report and a report following the 6 week follow up consultation to the Board noting any complications or concerns and any need for additional treatment.
Anita Smith Martin Morrissey Catherine Gavan
PRESIDENT MEMBER MEMBER
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