UI (Consent to Special Medical Treatment)

CITATION:	UI (Consent to Special Medical Treatment) [2020] TASGAB 48
HEARING DATE(S):	28 April 2020, 15 May 2020, 11 September 2020, 18 September 2020
DATE OF ORDERS:	2 December 2020
DATE OF STATEMENT OF REASONS:	20 November 2020
BOARD:	Ms R. Holder, President Mr C. Lee, Member Dr M Fasnacht, Member
APPLICATION	Application for Consent to Special Medical Treatment – Sterilisation
CATCHWORDS:	Sterilisation; capacity to give consent to the treatment; meaning of general nature and effect of proposed treatment
LEGISLATION CITED:	Guardianship and Administration Act 1995, ss 3, 6, 17(2), 36, 43, 44, 45 Guardianship Act 1987 (NSW), s 33
CASES CITED:	C v Guardianship and Administration Board [2002] TASSC 29 B v Mental Health Tribunal [2020] TASSC 10 Hunter and New England Area Health Service v A [2009] NSWSC 761 PBU & NJE v Mental Health Tribunal [2018] VSC 564 UMG [2015] NSWCAGD 54 Secretary, Department of Health and Community Services v J.W.B. and S.M.B. (Marion’s Case) [1992] HCA 15
PUBLICATION RESTRICTION:	The decision has been anonymised for the purpose of publication

Statement of Reasons

The Guardianship and Administration Board (‘the Board’) heard and determined an Application for Consent to Special Medical Treatment dated 21 February 2020 (‘the Application’) for Ms UI.
The Board determines that Ms UI is a person to whom Part 6 of the Guardianship and Administration Act (1995) (‘the Act’) applies.
The Board gives consent for Ms UI to undergo the proposed treatment that is a tubal ligation under general anaesthetic.

Background

Ms UI is a 37 year old single woman who lives in supported group home accommodation with [the Supported Accommodation Facility].
Ms UI is the mother of two children, aged 12 and 13 who live with their father and who spend time with Ms UI, usually each fortnight.
Ms UI enjoys a relationship with her father, who at the time of the hearing was away. Ms UI indicated her father was not aware of the Application before the Board.
The undisputed medical evidence provides that Ms UI developed fungal meningitis on 4 January 2017 and was admitted to the Royal Hobart Hospital (‘RHH’) in a reduced conscious state. Following neuro-imaging and an MRI brain scan, Ms UI was diagnosed with an acquired brain injury.
Dr Foley, neuropsychologist at the RHH states:
the functional consequences of this injury were significant and Ms UI sustained global cognitive deficits, reduced balance and coordination (including gross and fine motor skills) and speech impairments (voice initiation and breathing coordination). She required a prolonged hospital stay and extensive inpatient and outpatient rehabilitation.
Ms UI was discharged from the RHH requiring support services to meet her needs. Ms UI lived at [the Supported Accommodation Facility] initially, before moving to [another Supported Accommodation Facility].
An Application for Guardianship and Administration was made, given it was considered Ms UI did not have capacity to make lifestyle or financial decisions. After hearing the Application for Guardianship and Administration on 28 April 2017, the Board made a twelve month plenary guardianship order and a plenary administration order for Ms UI, appointing the Public Guardian and Public Trustee respectively.
On 26 April 2018 after hearing a Review of Order Application the Board continued the administration order until 25 April 2021. The Board varied the guardianship order and limited the order, appointing the Public Guardian to make decisions pertaining to where Ms UI is to live; providing consent to the provision of support services and negotiating and putting into effect arrangements for regular contact with her children. The Guardianship Order remains in effect until 25 April 2021.
The Guardian, Ms Russell from the Office of the Public Guardian (the Guardian), states she has been Ms UI’s delegated Guardian since September 2017.
Ms UI moved to supported group home accommodation with [the Supported Accommodation Facility] in July 2019, which was consented to by her Guardian.
The evidence before the Board is that Ms UI has a history of persistent pelvic pain predominantly on her left side. This issue was first raised by the disability accommodation provider with the Guardian.
Ms UI consulted her General Practitioner and was subsequently referred by her General Practitioner to the RHH Gynaecological Clinic (the Clinic). In May 2019 she attended the Clinic and was reviewed by Obstetrics and Gynaecology Consultant, Dr Greg Bower.
The Guardian gave evidence that she was contacted by Ms UI’s previous disability accommodation provider after the appointment indicating Ms UI had been recommended for tubal ligation and had been provided with paper work pertaining to the procedure. The Guardian stated she wrote to Dr Bower setting out the requirements for special treatment under the Act and raised the possibility of needing to make an Application under the Act. The Guardian received no response. The Guardian then attended an appointment with Ms UI and her General Practitioner. It is understood Ms UI’s General Practitioner referred Ms UI back to the Clinic for further assessment.
In January 2020 Ms UI attended the Clinic and met with consultant Dr Diane Keating for assessment. Tubal ligation was again discussed. Ms UI underwent a pelvic ultrasound, which identified an adnexal cyst, which within a few months self-resolved. A diagnostic laparoscopy was recommended to explore the cause of Ms UI’s pelvic pain. This has not occurred, but is intended to occur at the same time as the proposed treatment.
In January 2020 the Guardian received a call from Dr Sue Keating concerning Ms UI’s capacity to consent to the proposed treatment, the guardianship order and whether she needed to make application to the Board. The Guardian referred to a neuropsychology assessment report by Dr Caitlin Foley on Ms UI in 2017 and suggested a further psychology assessment may need to be completed.
Ms UI again attended the Clinic on 21 February 2020 and attended upon the Applicant, and tubal ligation was again discussed, including the risks of the procedure and other alternatives to treatment. After this consultation, the Applicant made the Application to the Board for Consent to Special Treatment.
Under the care of her General Practitioner, Ms UI has been prescribed a number of forms of contraception, including oral contraceptives, Implanon, and a Mirena intrauterine device. For the last 18 months she has been prescribed Depo Provera injections which is a hormone given every three months which has resulted in her not menstruating.
During the course of her evidence Ms UI also stated she frequently feels depressed and has done so for the last seven years.

The Hearing

The Board held a Directions Hearing on 28 April 2020. A direction was made pursuant to section 17(2) of the Act that the Public Guardian investigate and report to the Board as to Ms UI’s understanding of the proposed medical treatment, the practical effect of having it and her views and wishes about the Application. Further the Public Guardian was asked to report on Ms UI’s views, wishes and understanding as to pregnancy, menstruation, contraception and protective behaviours.
The Board part-heard the Application on 15 May 2020 and adjourned the matter to enable further medical assessment and reporting by Dr Foley as to Ms UI’s capacity to consent to the proposed treatment.
After further adjournment on 11 September 2020, given the unavailability of a witness to give evidence, the Board continued to hear the Application on 18 September 2020.
In attendance at the hearing on 18 September 2020 were:
a.Ms UI, in person;
b.Dr Jacqueline Berry, the Applicant, by telephone;
c.Mr Victor Murray, Legal Aid Commission of Tasmania (LACT), representing Ms UI in person;
d.Ms Sarah Campbell, LACT, assisting Mr Murray in person;
e.Ms Maddy Russell, the Guardian, in person;
f.Dr Caitlin Foley, neuropsychology registrar at the RHH, by telephone;
g.Mr EC, accommodation services, [the Supported Accommodation Facility], in person; and
h.Ms DE, support worker, in person.
The Board had before it the following documents:
a.Guardianship and Administration Orders dated 26 April 2018;
b.The Application dated 21 February 2020;
c.Health Care Professional Report (‘HCPR’) of Dr Jacqueline Berry dated 24 February 2020;
d.Neuropsychological Assessment Summary of Dr Caitlin Foley dated 5 February 2018;
e.Neuropsychological Assessment Report of Dr Caitlin Foley dated 22 April 2020;
f.Board’s Order to adjourn the Application dated 28 April 2020;
g.Report of the Office of the Public Guardian dated 28 April 2020;
h.Report of the Office of the Public Guardian dated 30 April 2020;
i.Board’s Order to adjourn the Application dated 15 May 2020;
j.Neuropsychological Report of Dr Caitlin Foley dated 11 August 2020;
k.Written submissions filed on behalf of Ms UI by the Legal Aid Commission of Tasmania; and
l.Emails between the Guardian and Ms UI.
Upon the conclusion of the hearing the Board reserved its decision.
The Board has produced this Statement of Reasons of its own motion, rather than at the request of a party to the proceedings.

Legislation

Part 6 of the Act applies to a person with a disability who is incapable of giving consent to the carrying out of medical and dental treatment, whether or not the person is a represented person. Ms UI is a represented person as defined in section 3 of the Act, as there are guardianship and administration orders in force for her.
Under section 36 of the Act a person is incapable of giving consent to the carrying out of medical treatment if the person –
(a) is incapable of understanding the general nature and effect of the proposed treatment; or
(b) is incapable of indicating whether or not he or she consents or does not consent to the carrying out of the treatment.
The Act prescribes that if a person is incapable of giving consent to special treatment then under section 45 of the Act, only the Board may provide consent.
‘Special treatment’ is defined in section 3 of the 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.’
A person who the Board is satisfied has a proper interest in the matter may make application to the Board for the carrying out of medical treatment on a person to whom Part 6 applies (section 44 of the Act).
Section 45 of the Act provides:
(1) On hearing an application for its consent to the carrying out of medical or dental treatment the Board may consent to the carrying out of the medical or dental treatment if it is satisfied that –
(a) the medical or dental treatment is otherwise lawful; and
(b) that person is incapable of giving consent; and
(c) the medical or dental treatment would be in the best interests of that person.
(2) For the purposes of determining whether any medical or dental treatment would be in the best interests of a person to whom this Part applies, matters to be taken into account by the Board include –
(a) the wishes of that person, so far as they can be ascertained; and
(b) the consequences to that person if the proposed treatment is not carried out; and
(c) any alternative treatment available to that person; and
(d) whether the proposed treatment can be postponed on the ground that better treatment may become available and whether that person is likely to become capable of consenting to the treatment; and
…
(f) any other matters prescribed by the regulations.
The Board must also balance the principles in section 6 of the Act for every function or power conferred by the Act, and these are:
(a) the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; and
(b) the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and
(c) the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect.

Person with a proper interest

As outlined above, Ms UI attended numerous appointments/assessments with consultants at the Clinic. Ms UI also attended a consultation with the Applicant at the Clinic on 21 February 2020. The Applicant subsequently made the Application to the Board seeking the Board’s consent for Ms UI to have special treatment. The Board is satisfied that for the purposes of section 44(1) of the Act, the Applicant has a ‘proper interest’ in this Application. She has treated Ms UI as a medical practitioner and intends to undertake the treatment.

Proposed treatment

The Applicant’s written and oral evidence is that the proposed treatment would be a tubal ligation. The procedure would require Ms UI to be under general anaesthetic and would be performed as keyhole surgery. The Applicant recommends removal of the fallopian tubes rather than clipping them, where there is no potential for reversal of the procedure at a later date. The tubal ligation does not affect the ovaries and so does not cease Ms UI’s menstruation. The tubal ligation would result in Ms UI being rendered permanently infertile.
At the same time a laparoscopy for the purpose of investigation of Ms UI’s left sided lower abdomen/pelvic pain would occur and treatment would follow if there was a clear cause of the pain. The laparoscopic procedure could be consented to by her Guardian, as Person Responsible.[1]
[1] Guardianship and Administration Act 1995 (Tas), s43.
The Board finds for the purpose of section 45(1)(a) of the Act, that where consent exists, the proposed medical treatment is ‘lawful treatment.’

Evidence – Capacity

The issue of whether Ms UI is a person to whom Part 6 of the Act applies, and in particular whether Ms UI has capacity to consent to the proposed medical treatment, was a significant issue under consideration at hearing.
There are two bases provided in section 36(2) of the Act upon which it might be concluded a person is incapable of giving consent. Section 36(2)(a), whether Ms UI is incapable of understanding the general nature and effect of the proposed treatment, was the issue at hearing. As is apparent from her evidence set out below, Ms UI is capable of indicating she consents to the carrying out of the treatment.

Applicant’s evidence

The Application has been filed on the basis that the Applicant does not believe Ms UI has capacity to consent to the proposed treatment.
The Applicant stated Ms UI had discussed sterilisation with her General Practitioner and raised it at a Clinic consultation in 2019. Tubal ligation had been discussed at other clinic sessions with consultants prior to Ms UI consulting with the Applicant on 21 February 2020.
The Applicant stated that in the medical notes other consultants had raised the issue as to whether Ms UI had capacity to consent to the proposed treatment.
The Applicant stated that at her consultation with Ms UI she went through with her the proposed treatment, the risks of the proposed treatment and discussed other alternative forms of contraception with her.
The Applicant stated Ms UI had expressed to her she wanted to proceed with the proposed treatment so she can menstruate regularly.
The Applicant indicated from the medical notes and from her own discussions with her, it was clear Ms UI had consistently expressed a wish not to have any more children, as she believed her family is complete. Ms UI had stated to the Applicant she recognised she has limited ability to care for any more children.
The Applicant stated that after assessing Ms UI she consulted with Dr Bower and they determined an Application to the Board should be made.
In the Application, the Applicant states Ms UI is unable to adequately comprehend the risks of the proposed treatment, the benefits of the proposed treatment and is unable to consider the alternatives to the proposed treatment.
At hearing the Applicant stated she is concerned Ms UI does not understand the nature and effect of the procedure. In her opinion Ms UI does not understand the consequences of the treatment, for example, that the procedure may not fix her abdominal pain. The Applicant stated Ms UI does not appear to understand that removing hormonal contraception may contribute to more pain, that is, her periods may be heavy as per the notes of her General Practitioner and may themselves cause discomfort or pain.
The Applicant stated that despite going through the risks of the proposed treatment with Ms UI as simply as possible, she does not believe Ms UI understands the ‘surgical risks of treatment but appeared to understand the anaesthetic risk.’ The Applicant stated by way of example: ‘talking with her I don’t think she could understand that if there was injury to the abdomen then you may end up with a stoma. I went through that with her in the simplest way.’ In her evidence she outlined that there could be damage to the organs and structures within the abdominal cavity including the bladder, ureters, the bowel and blood vessels. She stated there was a very small risk of death and opined that is was highly unlikely that serious complications would result.
The Applicant stated Ms UI had tried most forms of contraception. She had discussed with her alternative treatments including the Mirena, Implanon, estrogen containing pill and the Depo Provera but not the progesterone containing pill or the barrier method as she did not believe these forms of contraception were appropriate options for Ms UI. Ms UI continued to express a wish for tubal ligation.

Dr Caitlin Foley’s evidence

Dr Caitlin Foley in her report dated 22 April 2020 noted ‘three brief neurological assessments on the 29^th of March 2017, 7^th June 2017 and 14^th of December 2017, to monitor her recovery over time,’ were completed and ‘[h]er performance across all time points was characterised by global cognitive impairments, with most scores falling within the ‘borderline’ to ‘extremely low’ range for her age.’
Following neurological assessment on 20 April 2020 Dr Foley reported:
With regard to her cognitive function, examination of Ms UI’s scores and qualitative performance across time suggests possible improvements, in semantic verbal fluency and memory for contextualized verbal information. Other skills remain unchanged; she continues to experience strengths in her auditory attention span and basic language skills (naming) whereas processing speed, visuospatial/constructional skills, memory for unstructured verbal information and executive functions remain poor and mostly fall within ‘borderline’ and ‘extremely low’ ranges.
Dr Foley reviewed Ms UI on 17 July 2020 specifically to provide a report to the Board. In her report dated 11 August 2020 she referenced that she had begun the assessment by determining Ms UI recognised there were two procedures, the diagnostic laparoscopy and the tubal ligation, that could be performed separately or together.
Dr Foley opines:
Ms UI’s responses to capacity questions indicated limited understanding of the nature and effect of tubal sterilisation. Specifically, her reasoning as to the purpose of the procedure was medically inaccurate and conflated with investigations and treatment for the chronic pelvic pain (i.e. she believe the fallopian tubes were the cause of her pain and tubal sterilisation would thus reduce or eliminate it). While she recognised the diagnostic laparoscopy and tubal sterilisation as separate medical procedures, she appears to see them both as designed to address her pain, and I suspect they have become associated as they were discussed simultaneously during the same gynaecology appointments. Her understanding of the actual procedure was also limited and there were two key points of misunderstanding that, once clarified, appeared to change her mind and she indicated that she would not consent to them. These were (1) she thought the fallopian tubes would be clipped, not removed, and (2) she did not realise an instrument would be inserted through the vagina. She made it clear that she did not want either of these things to happen. Ms UI did understand that tubal sterilisation was intended to stop her being able to become pregnant, and this was the desired outcome for her; however, she did not have a good understanding of the alternatives (e.g. continuing with the Depo Provera injections, trying other forms of hormonal contraception, or using barrier protection) and showed little evidence of having thought through and weighed up the alternatives. Her current form contraception is considered effective protection against pregnancy, and her reasons for choosing tubal sterilisation over this current method was due to mistaken beliefs that tubal sterilisation would directly (via clipping fallopian tubes) or indirectly (via recommencing periods) reduce her pain. Therefore, Ms UI’s understanding of why tubal sterilisation was proposed, the mechanisms of the procedure, and her reasoning behind choosing this option were based on an erroneous association between the procedure and her chronic pelvic pain. As a result, I do not feel that she adequately understands the nature of the treatment.
Unsurprisingly, this misunderstanding has influenced her perceptions of the effect of the treatment, as she falsely believes that her pain is likely to improve, and this is a key motivating factor for having tubal sterilisation in general, as well as for wanting to have it right now. I do feel that she fully appreciates the tubal sterilisation will permanently stop her being able to become pregnant, however my concern is that she has not reasonably considered alternative, less invasive and less permanent options for establishing the same desired effect. She said that she had not considered tubal sterilisation until it was suggested in a gynaecology appointment, and did not recall having discussed any other options. I also do not feel that Ms UI appreciates the full spectrum of risks associated with the surgery, or correctly understands the implications of not having the procedure (e.g. that her pain will still be explored and addressed via diagnostic laparoscopy and she will continue to be protected from pregnancy with the contraceptive injections). Overall, I don’t feel that she reasonably understands the effect of the tubal sterilisation procedure and has adequately weighed up the relevant risks and benefits in arriving at her decision.
It is my opinion, therefore, that Ms UI does not have capacity to consent to tubal sterilisation at this time.

At hearing Dr Foley clarified that Ms UI could not identify why the alternative forms of treatment were not suitable without significant leading and prompting by her. She indicated when she asked if oral contraceptives were a treatment option instead of the proposed treatment Ms UI replied no, but could not describe why.

LACT– Ms UI’s solicitors

Ms UI’s solicitors submitted written submissions to the Board prior to the hearing on 18 September 2020. The submissions outlined the requirements of the Act in relation to medical treatment, consideration of the term ‘understanding the nature and effect of treatment’ and identifying case law in relation to capacity and an analysis of some of the evidence before the Board, primarily Dr Foley’s report dated 11 August 2020.
Ms UI’s solicitors stated in the written submissions:
What is in issue is the ability to understand in a general sense the material facts, and the reasonably likely effects, including the ability to weigh outcomes against each other.
Ms UI should not be held to a higher standard of decision-making than other members of the community….
Ms UI has a disability that affects her cognitive abilities. Despite this, her capacity in respect of any particular decision not covered by an existing determination must be presumed.
The evidence before the Board is not, with respect to Ms Foley’s expert opinion, sufficient to dislodge the presumption in favour of capacity. The conclusions reached by Ms Foley are not accepted by Ms UI.
The Board is required to determine the material facts and apply the law to those facts. The Board should therefore give Ms Foley’s conclusions little weight, even if the factual propositions are wholly accepted….
Ms UI’s solicitor submits that Ms UI has a ‘generally good understanding of the nature of the procedure and its primary consequence.’ Further it was submitted Ms UI has an ‘adequate understanding of the risks’ of the proposed treatment.
The submissions also refer to Ms UI’s motivation for the proposed treatment being birth control, experience of menstruation and reduction in persistent pelvic pain. It is submitted birth control is the dominant motivation and the other reasons should not impact on the determination of whether Ms UI understands the nature and effect of the proposed treatment.
Dr Foley was not questioned by Ms UI’s solicitors at hearing.
Ms UI’s solicitors did not tender any alternative medical evidence on Ms UI’s behalf.
It was submitted by Ms UI’s solicitor that the Board should find Ms UI capable of giving consent to the proposed treatment and the application should be dismissed.

The Guardian

The Guardian provided an Investigation Report and copies of emails she sent to Ms UI, and Ms UI’s responses, to the Board. The Guardian questioned Ms UI by email and met with her once in order to complete a report to the Board.
In relation to her understanding of the proposed treatment, the risks, benefits and impact on her, Ms UI stated she would be ‘…under anaesthetic 40 minutes, they make a small incision just below my belly button and tie my tubes….I can have unprotected sex… I’ll get my periods. …There is a risk with any surgery.’ When prompted she added; ‘I might bleed out’ and ‘risk of infection’ and ‘I hope for no more pain.’
The Guardian’s report states Ms UI does not want any more children and hopes the procedure will help with her abdominal pain. Ms UI wants tubal ligation because it is permanent and wants to menstruate normally. The Guardian opines ‘she seemed to demonstrate, in the course of our discussion, that she had considered in a reasonable way the nature and effect of the proposed treatment.’
The Guardian submitted at hearing it was her belief Ms UI could be ‘supported to make the decision herself.’

Ms UI’s evidence at hearing

Ms UI gave oral evidence at hearing on 15 May 2020 and 18 September 2020. Ms UI gave evidence that the benefit of the proposed treatment was so she was ‘able to have sex.’ Ms UI also stated she wouldn’t be able to have more children and indicated she didn’t want more children because she found it hard enough looking after herself.
Ms UI described the treatment as a cut under her belly button and ‘move the tubes around and search around.’ Ms UI indicated the operation would be an hour or two and she would be in bed two weeks after the operation.
When asked by the Board if there were any risks having the proposed treatment Ms UI stated ‘there isn’t’ and then added there is ‘a risk in every operation under anaesthetic.’ When asked if anything particular could go wrong with the surgery she responded ‘I don’t think so.’ The Board put to her that Dr Berry had said there is a small chance that other organs could get damaged by the instruments and she responded ‘I don’t care.’ She then indicated ‘nothing will go wrong.’ When asked if the doctor had gone through what could go wrong, Ms UI responded she had but could not remember what she had said. She expressed she would be ‘sore afterwards’.
Ms UI gave evidence that she wanted the treatment to help her pain which she said is like a bad period pain which is there all the time and which is on the left side of her body. She stated the pain has existed for over two years. In response to the Board’s questioning Ms UI stated fixing the pain is more important to her than not having children. Ms UI stated fixing the pain was more important to her than fixing the side effects of the Depo Provera, which she described to be weight gain. At the hearing on 15 May 2020 Ms UI’s main focus and reason for having the proposed treatment was to ‘fix the pain’ and ‘have sex’.
At hearing on 18 September 2020 Ms UI stated the proposed treatment would result in her having her fallopian tubes tied and didn’t care if they were clipped or cut.
In response to questioning, Ms UI stated the proposed treatment is the best option for her because she is worried she will get pregnant and won’t be able to raise a child. When asked about her current contraception she is using, she responded ‘I don’t bleed.’ She confirmed this is the main reason for doing things differently. She asserted ‘bleeding is a release of energy from her body’ which is important to her. She identified that the ‘needle’ however stopped her from getting pregnant. When asked what the other options apart from the needle to stop her from getting pregnant are, she stated ‘I don’t think there is anything.’
At hearing Ms UI stated ‘it is my life. My body. I don’t have control over my life.’ When asked how the procedure gives her control over her life she responded: ‘I can have sex whenever I want.’ When asked how that is different to now, Ms UI responded ‘I don’t bleed. I want to feel like a lady.’
Ms UI said she was on oral contraceptives when she was in her teens. She said she is now a heavy smoker. She indicated the Implanon made her feel suicidal, as did the Mirena. She said being on the Depo Provera makes her feel she needs to bleed.
Ms UI stated she could not remember how it felt menstruating as it has been too long since she had a period. Further she indicated she still wanted the treatment to proceed even though she was not aware instruments would be inserted through her vagina, and had told Dr Foley she did not want this to happen.

Application of Part 6 of the Act

A person is incapable of giving consent to medical treatment if the person:
(a) is incapable of understanding the general nature and effect of the proposed treatment; or
(b) is incapable of indicating whether or not he or she consents or does not consent to the carrying out of the treatment.
There is limited superior court authority concerning the application and meaning of section 36 of the Act. In C v Guardianship and Administration Board [2002] TASSC 29 the then Justice Blow makes the point (at [3]) that the findings on the evidence in relation to each of these aspects may be different to the other. The provision is concerned with the treatment as it relates to the individual concerned, not with the effect of treatment in patients in general. His Honour also notes (at para [6]) that the word “general” ‘does no more than refer to an understanding in general terms, rather than an understanding as to matters of detail.’
In B v Mental Health Tribunal [2020] TASSC 10 Chief Justice Blow hearing an appeal from a decision of the Mental Health Tribunal (Tas) states at paragraph 7:
There is a presumption that an adult is capable of deciding whether to consent to or to refuse medical treatment. However, the presumption is rebuttable. In considering the question of capacity, it is necessary to take into account both the importance of the decision and the ability of the individual to receive, retain and process information given to him or her that bears on the decision.
At common law, the presumption exists that adults have the capacity to make decisions that affect their own lives unless that presumption is rebutted.[2]
[2] Hunter and New England Area Health Service v A [2009] NSWSC 761
While the Act does not state it, the presumption of capacity must be the starting point from which Part 6 of the Act applies. Part 6 would not apply if a person had capacity to consent to the carrying out of medical treatment.
In Hunter and New England Area Health Service v A [2009] NSWSC 761 the Court sets out the common law position:
23 There is a presumption of capacity, whereby an adult "is presumed to have the capacity to consent to or to refuse medical treatment unless and until that presumption is rebutted"(see Butler-Sloss LJ in Re MB [1997] 2 FCR 514 at 553).
24 In this context, it is necessary to bear in mind that there is no sharp dichotomy between capacity on the one hand and want of capacity on the other. There is a scale, running from capacity at one end through reduced capacity to lack of capacity at the other. In assessing whether a person has capacity to make a decision, the sufficiency of the capacity must take into account the importance of the decision (as Lord Donaldson pointed out in Re T at 113). The capacity required to make a contract to buy a cup of coffee may be present where the capacity to decide to give away one's fortune is not.

25 As Butler-Sloss LJ said in Re MB at 553 – 554, in deciding whether a person has capacity to make a particular decision, the ultimate question is whether that person suffers from some impairment or disturbance of mental functioning so as to render him or her incapable of making the decision. That will occur if the person:
(1) is unable to comprehend and retain the information which is material to the decision, in particular as to the consequences of the decision; or

(2) is unable to use and weigh the information as part of the process of making the decision.
...
40 ...

(7) In considering the question of capacity, it is necessary to take into account both the importance of the decision and the ability of the individual to receive, retain and process information given to him or her that bears on the decision.
A consideration of the common law position was also set out in PBU & NJE v Mental Health Tribunal [2018] VSC 564 at paragraph 157, as referred to by Ms UI’s solicitors in their submissions.
In PBU & NJE v Mental Health Tribunal [2018] VSC 564 Justice Bell found that the capacity threshold is a ‘relatively low’ threshold which requires that a patient ‘understands and is able to remember and use or weigh the relevant information, and communicate a decision, in terms of the general nature, purpose and effect of the treatment, and should not be an inquiry into whether the person can make a sensible, rational or well-considered decision’ (at [182]).
In UMG [2015] NSWCAGD 54 the NSW Civil and Administrative Tribunal applied a common law meaning to ‘capable of giving consent to the carrying on of medical treatment’ and stated that the Tribunal need to make findings as to the following matters:
The nature of the proposed treatment.
The effect of the proposed treatment.
Is Miss UMG incapable of understanding the general nature and effect of the proposed treatment, in that, is she unable to comprehend and retain the information which is material to the decision, in particular as to the consequences of the decision, or is she unable to use and weigh the information as part of the process of making the decision.
As indicated by Ms UI’s solicitors, the Guardianship Act 1987 in New South Wales has an identical provision to that of section 36 of the Act.[3]
[3] Guardianship Act 1987 (NSW), s33(2)(a).
At hearing, Ms UI was able to state the proposed treatment as outlined in paragraph 36 above, was to ‘tie’ her fallopian tubes. She understood the procedure would be under general anaesthetic. At the hearing she described the treatment as ‘a cut under her belly button and move the tubes around and search around.’ This was consistent with what she had described to the Guardian and Dr Foley. Ms UI was also able to confirm to Dr Foley that the proposed treatment is keyhole surgery performed as day surgery. She was not able to identify that the proposed treatment would result in a cutting and removal of her fallopian tubes rather than a clipping. Further she was not aware until her meeting with Dr Foley on the 17 July 2020, that instruments would be inserted via the uterus into her vagina so pelvic organs can be manipulated. In respect of this Ms UI was adamant when she met with Dr Foley she did not want either of these situations to happen as it was too invasive. However at hearing on the 18 September 2020 she stated in respect of the instruments ‘I don’t really want it, but if it has to happen, I guess so.’
Ms UI demonstrated a very basic understanding of the proposed treatment and how it would be conducted. There were some factual inaccuracies in her evidence as to how the surgery would be conducted and the length of her recovery. The Board needs to be satisfied Ms UI has a ‘general ‘understanding of the nature of the proposed treatment’ and ‘is a level of understanding required of the general population, with or without a decision making disability.’[4] The Board adopts Justice Bell’s finding that that the capacity threshold is a ‘relatively low’ threshold so as not to discriminate against people with disability,[5] and the Board is persuaded Ms UI has a general understanding of the nature of the procedure.
[4] UMG [2015] NSWCAGD 54 at [170].
[5] PBU & NJE v Mental Health Tribunal [2018] VSC 564.
In relation to whether Ms UI understands the ‘effect’ of the proposed treatment, Ms UI was able to identify some but not all risks or possible complications arising from the proposed treatment. She identified risk of infection and that she may ‘bleed out’ (haemorrhage) and that ‘there is always risks with a general anaesthetic’ but was unable to identify what side effects may arise from the general anaesthetic. More importantly she was unable to identify risk of injury to organs and major blood vessels. The Applicant gave the example that ‘I don’t think she could understand that if there was injury to the abdomen then you may end up with a stoma. I went through that with her in the simplest way.’ Dr Foley also stated that Ms UI could not identify a rupture of a major blood vessel resulting in internal bleeding, accidental damage to other organs or that the keyhole surgery could progress to open surgery in the event of complications or unexpected findings, which were matters she had checked the Applicant had gone through with her. Ms UI does not appear to have retained these material facts provided to her by the Applicant, as demonstrated in her discussion with the Guardian and her evidence at hearing.
To a limited extent Ms UI was able to explain the short term consequences associated with the surgery but showed confusion with the period of recovery, believing she may be in bed for two weeks after the proposed treatment to recover.
It was clear that Ms UI was able to understand the proposed treatment would mean she would permanently be unable to have children.
The Board was not satisfied that Ms UI understood that the proposed treatment would not resolve the pelvic pain she experiences. Dr Foley was of the opinion that Ms UI believed the proposed tubal ligation would treat the pelvic pain: ‘she believes the fallopian tubes were the cause of her pain and tubal sterilisation would thus reduce or eliminate it.’ The Board accepts Dr Foley’s evidence in this respect and notes that similar concerns were expressed by the Applicant at hearing, and particularly evidenced to the Board when Ms UI gave evidence on 15 May 2020.
At the hearing on 18 September 2020, Ms UI expressed she wanted the proposed treatment so she could menstruate to make her feel ‘like a woman’. Ms UI acknowledged, however, she was unable to recall what menstruation felt like and was unable to recall that her periods had been heavy previously and may be a source of pain going forward. In her consultation with Dr Foley she also raised the resumption of menstruation as a key motivation for having the proposed treatment, as she believed her pelvic pain may be as a result of not having a period while on the Depo Provera injections and having the insertion of the Mirena. She theorised that her fallopian tubes are blocked and menstruating would unblock them, or alternatively that the fallopian tubes are bleeding and causing the pain. The Board finds that Ms UI’s reasoning for wanting the treatment and the weight she places on wanting to menstruate when she had no memory of menstruation, or because she believes it will fix her pelvic pain, is clearly confused and not based on relevant material information provided by the Applicant.
Further Ms UI at hearing stated she wanted the proposed treatment so she can have sex. Ms UI is able to have sexual intercourse now, and is protected from pregnancy by the Depo Provera. From this response, there is no benefit to her in having the proposed treatment and it is not a basis for her to have it.
The Board finds that while Ms UI was able to clearly communicate her wish for sterilisation, her reasoning for why she wants it remains confused and inconsistent. Ms UI demonstrated through her evidence and in her responses to Dr Foley and the Applicant that she has placed inappropriate weight on reasons that aren’t factually correct or that are not a benefit. Putting weight on contraception, the pain, and experiencing menstruation as her reasoning for the treatment does not weigh relevant material required in making the decision.
Ms UI was unable to demonstrate an understanding of alternative treatment options without significant prompting (e.g. continue with the Depo Provera injections, trying other forms of hormonal contraception, or using barrier protection). Even in a general sense she is unable to weigh alternative treatment options against the proposed treatment and consider what the risks and/or likely benefits of each option, including those treatment options she had tried. For example, she was unable to articulate that the proposed treatment would mean by ceasing the Depo Provera she would avoid having three monthly injections, the pain, inconvenience and intrusion of those injections and the associated weight gain. The Board is not satisfied Ms UI demonstrates sufficient capacity to have an understanding of the potential benefits of the treatment, as weighed against alternative treatments. She has been unable to understand the choices she has and unable to weigh up the consequences of those choices.
There are many inconsistencies and factual inaccuracies in Ms UI’s evidence. In her mind she clearly wants sterilisation but the reasoning and the information she attached to it is confused and at times factually incorrect.
Both the Applicant and Dr Foley raise concerns about Ms UI’s capacity to understand the nature and effect of treatment. No alternative medical evidence has been relied on to rebut these concerns.
In the case law cited earlier, it is clear that in assessing whether a person has capacity to make a decision the sufficiency of the capacity must take into account the importance and gravity of the decision. The proposed treatment will result in permanent and irreversible sterilisation. The Board finds that Ms UI lacks capacity to consent to the proposed treatment, in that she is unable to understand the effects of the proposed treatment.

Best interests

The Board then needs to apply the criteria in section 45(2) of the Act, that is whether the treatment is in Ms UI’s best interests.

The wishes of Ms UI

Throughout the hearing Ms UI’s wish has consistently been to be permanently sterilised. She has demonstrated this with whomever she has spoken.

Consequences to Ms UI if the treatment is not carried out

If the proposed treatment is not carried out the consequence is that Ms UI would continue as she is, not permanently infertile. Presumably she would continue to take the Depo Provera for contraceptive purpose, to prevent pregnancy.

Any alternative treatment available to Ms UI

The Applicant, both in the Application and in her oral evidence, detailed alternative treatments that are available. The alternative treatments available are continued use of the Depo Provera, or use of the oral contraceptive pill, the use of intrauterine contraceptive devices such as the Mirena, and the Implanon, which has been tried and were not successful.
Dr Berrry outlined her reasons for forming the view that each of the other possible treatments would not be appropriate for Ms UI. With the Mirena Ms UI, through her General Practitioner, requested it be removed and not put back in due to abdominal pain. Further Ms UI stated she felt depressed and was experiencing suicidal thoughts during the time it was inserted. Ms UI expressed she felt a similar way when she had the Implanon. The Applicant stated that moving into her forties, the Implanon can cause irregular bleeding which may cause issues for Ms UI. Dr Berry indicated it was plausible that concerns about low mood and suicidal ideology may arise from the use of the Implanon, and to a lesser extent the Mirena, and because of these concerns held by Ms UI, she would not recommend it.

Dr Berry stated oral (oestrogen containing) contraception was not suitable given Ms UI was a heavy smoker and other factors, including her age, weight, risk of pulmonary embolism and potential death. She did not discuss the progesterone only oral pill with Ms UI given the failure rate was more significant and it needed to be taken within 3 hours of the same time every day.

Dr Berry stated long term usage of Depo Provera has a risk of osteoporosis which may put Ms UI at risk of falls and also at risk of weight gain and mood disturbance.

The nature and degree of any significant risks associated with the proposed treatment or any alternative treatment

The Applicant gave evidence that the possible risks and complications of the laparoscopic tubal ligation would include an adverse reaction to the anaesthetic, damage to nearby organs as set out earlier in these Reasons, infection, and haemorrhage.

Whether the proposed treatment can be postponed on the ground that better treatment may become available and whether that person is likely to become capable of consenting to the treatment

The Applicant gave evidence that there were no new medical procedures or alternative treatment that she was aware of that may become available in the future.
In her report Dr Foley states that:
It is difficult to make a judgement as to whether this may change in the future; while her cognitive function has shown no reliable improvement since 2017, without having been present during her gynaecology consultations I also cannot be confident that she was provided with all relevant information in a way that she understands. Ms UI has shown capacity for new learning, and with adequate repetition of key facts, explicit discussion of the alternatives and pros and cons of each, and further education to correct errors of mistaken understanding, then there may be potential for a different outcome.
The Guardian states ‘in some ways, the investigation and assessment process during the period of adjournment has amounted to a supported decision-making pathway.’
The Board accepts the general proposition that a person’s capacity may improve over time or be enhanced with support. Ms UI has had ongoing consultations with her General Practitioner, has met with three consultants and the Applicant at the Clinic discussing the proposed treatment, risks and alternative treatments, has met and communicated with her Guardian about the possibility for treatment over many months, has undergone formal capacity assessment with Dr Foley and has been in front of the Board to give evidence on two occasions. Despite the repetition of key facts, regular discussion and education, and as the Applicant indicated ‘giving information in the simplest way possible’, Ms UI has not been able to demonstrate she understands the effect of the proposed treatment.

Findings as to section 45(2) of the Act

The Board finds that Ms UI is be able to express and communicate her wishes as to the proposed treatment. Ms UI has received support through this process and had ample opportunity to express her views and wishes. While her reasoning for wanting the proposed treatment has varied she remains adamant that she wants it. A person who is found to lack the capacity to understand the nature and effect of the treatment does not lose their right to express their wishes and, in this way, contribute to medical decisions about them. It is required by virtue of section 45(2)(a) and section 6 of the Act that the person’s wishes are, if possible, carried into effect.

Further, in determining the means which is less restrictive of Ms UI’s freedom of decision and action, it is necessary to take these wishes into account. While the Board cannot be certain that Ms UI’s wishes will not change in the future, the same level of uncertainty would apply to any woman faced with a similar decision. The Board determines it is appropriate to give weight to Ms UI’s wishes.

The Board accepts the evidence of the Applicant set out in above as to the reasons why the contraception alternatives are not appropriate. In doing so, the Board also gives consideration as to what the risks are in carrying out the proposed treatment. The Board finds that the proposed procedure has some identified serious risks; however, based on the Applicant’s evidence, which the Board accepts, the likelihood of these complications arising is small. There is no evidence before the Board that Ms UI is at any greater risk of any of these complications arising than any person without her disability.

The Board accepts the medical evidence of the Applicant that there is no benefit in postponing treatment on the basis no better treatment is likely to become available in the foreseeable future. Further, for the reasons set out above as to Ms UI’s understanding of the nature and effect of the proposed treatment, the Board does not accept that Ms UI is likely to become capable of consenting to the proposed treatment. Additionally, postponement of the proposed treatment would be contrary to Ms UI’s stated wishes.

The Board also needs to consider whether the proposed treatment is the least restrictive means. The proposed treatment is an invasive procedure with permanent consequences, that is, infertility. The High Court in Marion’s Case,[6] stated:
Sterilisation is a step of last resort….In the context of medical management ‘step of last resort’ is a convenient way of saying that alternative and less invasive procedures have all failed and it is certain that no other procedure or treatment will work.
[6] Secretary, Department of Health and Community Services v J.W.B. and S.M.B. (Marion’s Case) [1992] HCA 15
Ms UI’s solicitors submitted:
The Marion’s case analysis is not apposite to Ms UI’s circumstances. In contrast it would be the denial of the treatment that she would experience as a denial of her personal integrity and human dignity.
The Board is persuaded by this submission. Ms UI has the right to be treated equally before the law. This is clearly set out in the International Convention on the Rights of Persons with Disabilities (the CRPD), ratified by Australia and entered into force in 2008. Article 17 of the CRPD provides that every person with a disability has a right to respect for his or her physical and mental integrity on an equal basis with others. Article 23(1) (c) states that:
Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others, so as to ensure that: …Persons with disabilities, including children, retain their fertility on an equal basis with others.
This is not to say that a person with disability does not have the right to be rendered infertile when, as it is in Ms UI’s situation, it is her clear wish to be so and this is supported by her treating medical practitioners as being in her best interests. Sterilisation is not being imposed on Ms UI, it is what she wants.
The Board is satisfied the proposed treatment is in the best interests of Ms UI and will improve her quality of life by removing her worry and fear about becoming pregnant.
No one present at the hearing or any of the medical practitioners she has consulted are against the proposed medical treatment proceeding. Ms UI clearly wants to proceed with the proposed treatment and to allow this upholds her dignity and autonomy in having her wishes heard and acted upon.

Decision

The Board consents:

To treatment for Ms UI comprising of a tubal ligation under general anaesthetic.

[2020] TASGAB 48

2 December 2020