UMG

Case [2015] NSWCATGD 54 11 December 2015

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NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: UMG [2015] NSWCATGD 54
Hearing dates: 7 December 2015
Date of orders: 07 December 2015
Decision date: 11 December 2015
Jurisdiction: Guardianship Division
Before: C Fougere, Principal Member
M Wroth, Senior Member (Professional)
F Given, General Member (Community)
Decision:
Application for consent to special medical treatment dismissed.
Tribunal not satisfied that Miss UMG is incapable of understanding the general nature and effect of the proposed treatment.
Catchwords: SPECIAL MEDICAL TREATMENT – application for consent to special medical treatment – total hysterectomy and bilateral oophorectomy – whether the person is ‘incapable of giving consent to the carrying out of medical or dental treatment’ – section 34(1)(b) of the Guardianship Act 1987 (NSW) – whether the person ‘is capable of understanding the nature and effect of the proposed treatment’ – section 33(2)(a) of the Guardianship Act 1987 (NSW) – presumption of capacity – Part 5 does not apply – application dismissed
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Sch 6, s 10; ss 55(1)(a)
Guardianship Act 1987 (NSW), Schedule 6, clause 5(1); Part 5; ss 4, 32, 32(a), 33(1), 33(1)(b), 33(2), 33(2)(a), 33A, 34, 34(1), 36(1)(a), 36(1)(b), 42(1), 42(2), 44, 44(2)(a), 45, 45(1), 45(2), 45(3), 45(3)(b)
Guardianship and Administration Act 1995 (Tas)
Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
C v Guardianship and Administration Board [2002] TASSC 29
C v W [2015] NSWSC 1774
FI v Public Guardian [2008] NSWADT 263
Hunter and New England Area Health Service v A [2009] NSWSC 761
In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290
In re T (Adult: Refusal of Treatment) [1993] Fam 95
P& P (1994) 181 CLR 583
P v NSW Trustee and Guardian [2015] NSWSC 579
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
Re MB [1997] 2 FCR 514
Re JS [2014] NSWSC 302
SKX [2010] NSWGT 29
TAC [2010] NSWGT 23
XTV [2012] NSWGT 5
Texts Cited: Oxford English Dictionary (online edition)
Macquarie Dictionary (online edition)
Pearce and Geddes, Statutory Interpretation in Australia, 8th Edition 2014, LexisNexis Butterworths Online [3.30]
Category: Principal judgment
Parties: Miss UMG (subject person)
Dr OBB (applicant)
Ms BAW (party joined by the Tribunal)
Representation: Separate Representative: E Gemmell

File Number(s): 59929
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

What the Tribunal decided

The Tribunal dismissed the application seeking the Tribunal's consent for Miss UMG to undergo proposed special medical treatment on the basis that the Tribunal was not satisfied that Miss UMG is incapable of understanding the general nature and effect of the proposed treatment.

Background

Miss UMG is a 32-year old woman who lives with members of her family in Regional NSW. These family members are Ms BAW (“Miss UMG's aunt”), Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: UMG [2015] NSWCATGD 54
Case: [2015] NSWCATGD 54
Decision Date: 11 December 2015

CaseChat Overview and Summary

UMG, a 49-year-old woman with a history of psychiatric disorders, applied to the Mental Health Case Tribunal for consent to undergo a total hysterectomy and bilateral oophorectomy. The application was brought under the Guardianship Act 1987 (NSW) because UMG was deemed incapable of providing consent due to her psychiatric conditions. The Tribunal was tasked with determining whether UMG was unable to comprehend the nature and consequences of the proposed treatment, a crucial element under section 34(1)(b) of the Act. Additionally, the Tribunal had to assess whether UMG was capable of understanding the nature and effects of the treatment as required by section 33(2)(a) of the Act.

The primary legal issue was whether UMG had the capacity to understand the general nature and effect of the proposed treatment, which would determine if the Tribunal could grant consent under the Guardianship Act. The Tribunal examined the evidence provided, including psychiatric evaluations, to determine UMG's capacity. It considered the presumption of capacity under the Act and whether Part 5 applied. The Tribunal concluded that UMG had the capacity to understand the proposed treatment's nature and effect, and therefore dismissed the application.

The Tribunal found that UMG demonstrated an understanding of the proposed treatment and its consequences, thereby satisfying the requirements of section 33(2)(a) of the Guardianship Act. The Tribunal concluded that UMG was capable of understanding the general nature and effect of the proposed treatment, and therefore, the application for consent to the special medical treatment was dismissed. No further action under Part 5 of the Act was necessary as UMG's capacity to understand the treatment was affirmed.

Orders

Orders of the court

Application for consent to special medical treatment dismissed.

Tribunal not satisfied that Miss UMG is incapable of understanding the general nature and effect of the proposed treatment.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

UMG [2015] NSWCATGD 54

Most Recent Citation

GKB [2020] NSWCATGD 99

Cases Citing This Decision

NGN [2020] NSWCATGD 100
Citation 1 (Para 39)

…ent and does not entail being incapable of understanding the specific, special or exact or detailed nature and effect of the proposed treatment ( UMG [2015] NSWCATGD 54 at [133]-[156]).…
GKB [2020] NSWCATGD 99
Citation 2 (Para 47)

…ent and does not entail being incapable of understanding the specific, special or exact or detailed nature and effect of the proposed treatment ( UMG [2015] NSWCATGD 54 at [133]-[156]).…

See all citing cases →

Cases Cited

C v W [2015] NSWSC 1774
Citation 1 (Para 146)

…n 4 principles are a “statutory expression of the purposive character of the Court’s inherent (parens patriae) protective jurisdiction” ( C v W [2015] NSWSC 1774 at [90]). Given that Supreme Court’s inherent protective jurisdiction and the statutory jurisdiction exercised by NCAT when exercising functions allocated…
P v NSW Trustee and Guardian [2015] NSWSC 579
Citation 2 (Para 145)

…well established that the Guardianship Act should be construed beneficially having regard to its protective character ( P v NSW Trustee and Guardian [2015] NSWSC 579 at [56]). The centrality of the principles contained in section 4 of the Guardianship Act (set out in full at [45] above), and their role in informin…
Re JS [2014] NSWSC 302
Citation 3 (Para 149)

…The decision in Hunter and New England Area Health Service was applied in Re JS [2014] NSWSC 302 where Justice Darke states (at [18]):…
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Citation 4 (Para 136)

…of statutory interpretation “must begin with a consideration of the text itself” ( Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 at [47] (Hayne, Heydon, Crennan, Kiefel JJ). The starting point is to consider the ordinary and grammatical sense of the statutory words to be interprete…
Hunter and New England Area Health Service v A [2009] NSWSC 761
Citation 5 (Para 140)

…have the capacity to make decisions that affect their own lives unless that presumption is rebutted ( Hunter and New England Area Health Service v A [2009] NSWSC 761 (“ Hunter and New England Area Health Service ”) at [23]). Whilst this presumption has not been given explicit statutory force in Part 5 of the Guard…
FI v Public Guardian [2008] NSWADT 263
Citation 6 (Para 146)

…by NCAT when exercising functions allocated to the Guardianship Division “are both seeking to serve the same end” ( FI v Public Guardian [2008] NSWADT 263 at [49] (O’Connor K – DCJ (President)), it would be an unworkable situation for those proposing to undertake medical or dental treatment on adults in NSW if the…
C v Guardianship and Administration Board [2002] TASSC 29
Citation 7 (Para 135)

…the Guardianship Act (or its equivalent in other jurisdictions – however, see below the comments made in C v Guardianship and Administration Board [2002] TASSC 29) to assist in considering the scope of the provision.…
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
Citation 8 (Para 136)

…atutory words to be interpreted having regard to their context and legislative purpose ( Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [69] (McHugh, Gummow, Kirby, Hayne JJ)). In doing so, recourse may be had to dictionary definitions of these words (Pearce and Geddes, Statutory Inter…
P v P [1994] HCA 20
Citation 9 (Para 43)

…here other than to note the Tribunal's reference in that case to the leading authority concerning section 45(2) of the Guardianship Act, namely P& P (1994) 181 CLR 583, in which the Court referred (at [9] of the joint reasons) to the statutory scheme under the Guardianship Act imposing “particularly stringent condit…
[1994] 1 WLR 290 [1994] 1 WLR 290
Citation 10 (Para 151)

…In the case of In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290, Thorpe J considered that in order for a finding of incapacity to be made, “the question to be decided is whether it has been established that [the patient’s] capacity is so reduced…that he does not sufficiently understand the nature, purpose and…

Legislation Cited

Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 29)
Guardianship Act 1987 (NSW)
1 mention (from Para 11)
Guardianship and Administration Act 1995 (TAS)
1 mention (from Para 154)
Guardianship Regulations 2010 (NSW)
1 mention (from Para 37)

Medium Neutral Citation:	UMG [2015] NSWCATGD 54
Hearing dates:	7 December 2015
Date of orders:	07 December 2015
Decision date:	11 December 2015
Jurisdiction:	Guardianship Division
Before:	C Fougere, Principal Member M Wroth, Senior Member (Professional) F Given, General Member (Community)
Decision:	Application for consent to special medical treatment dismissed. Tribunal not satisfied that Miss UMG is incapable of understanding the general nature and effect of the proposed treatment.
Catchwords:	SPECIAL MEDICAL TREATMENT – application for consent to special medical treatment – total hysterectomy and bilateral oophorectomy – whether the person is ‘incapable of giving consent to the carrying out of medical or dental treatment’ – section 34(1)(b) of the Guardianship Act 1987 (NSW) – whether the person ‘is capable of understanding the nature and effect of the proposed treatment’ – section 33(2)(a) of the Guardianship Act 1987 (NSW) – presumption of capacity – Part 5 does not apply – application dismissed
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), Sch 6, s 10; ss 55(1)(a) Guardianship Act 1987 (NSW), Schedule 6, clause 5(1); Part 5; ss 4, 32, 32(a), 33(1), 33(1)(b), 33(2), 33(2)(a), 33A, 34, 34(1), 36(1)(a), 36(1)(b), 42(1), 42(2), 44, 44(2)(a), 45, 45(1), 45(2), 45(3), 45(3)(b) Guardianship and Administration Act 1995 (Tas)
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 C v Guardianship and Administration Board [2002] TASSC 29 C v W [2015] NSWSC 1774 FI v Public Guardian [2008] NSWADT 263 Hunter and New England Area Health Service v A [2009] NSWSC 761 In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 In re T (Adult: Refusal of Treatment) [1993] Fam 95 P& P (1994) 181 CLR 583 P v NSW Trustee and Guardian [2015] NSWSC 579 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 Re MB [1997] 2 FCR 514 Re JS [2014] NSWSC 302 SKX [2010] NSWGT 29 TAC [2010] NSWGT 23 XTV [2012] NSWGT 5
Texts Cited:	Oxford English Dictionary (online edition) Macquarie Dictionary (online edition) Pearce and Geddes, Statutory Interpretation in Australia, 8th Edition 2014, LexisNexis Butterworths Online [3.30]
Category:	Principal judgment
Parties:	Miss UMG (subject person) Dr OBB (applicant) Ms BAW (party joined by the Tribunal)
Representation:	Separate Representative: E Gemmell
File Number(s):	59929
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).