In May 2023, the Tasmanian Civil and Administrative Tribunal ("the Tribunal") heard an application from a treating doctor, "Dr HC", seeking consent to 'special treatment' being carried out by him to his patient, "TI". The proposed special treatment was a hysterectomy, which would render TI permanently infertile. As a sterilisation procedure satisfies the classification for 'special treatment' under the Guardianship and Administration Act 1995 (Tas) ("the Act"), it carries a requirement that the Tribunal grant consent before it may be carried out. The special treatment was recommended for therapeutic reasons, to alleviate TI's dysmenorrhea and associated suffering. The application was not opposed. However, owing to the nature of relief sought (serious, invasive and irreversible), and as TI is a represented person, the Tribunal was required to make enquiry and satisfy itself that the proposed 'special treatment' was in TI's best interests.
On 19 May 2023, the Tribunal granted its consent for TI to undergo the special treatment ("Decision"). The Tribunal published its reasons for the Decision on 19 June 2023 ("Reasons") as TI (Consent to Special Medical Treatment) [2023] TASCAT 105 ("TI's case"). This article provides an overview of the Decision and discusses how the case would have been considered in Victoria.
Background
Facts
TI, aged 31 years at the date of the Decision, suffers from Doose syndrome, a rare epileptic condition diagnosed in her early childhood,1 also known as epilepsy with myoclonic-atonic seizures. By reason of her diagnosis, which is categorised as paediatric encephalopathy, TI was disposed to progressive cerebral dysfunction including developmental delay and loss of cognitive skill. As the seizures worsened, she suffered associated cognitive decline.
TI is described as having severe intellectual disability.2 Consequent to this disability, she is a represented person3 and the subject of both a guardianship and administration order.4 TI's mother, "TJ", is TI's appointed guardian and administrator. TI lives in supported accommodation and has been assessed as requiring 24 hour support,5 and she is assisted by a support worker.6
TI is non-verbal and did not participate in the hearing.7 The Tribunal was advised that her participation would most likely cause her to be distressed, as she would not understand the nature or purpose of the hearing and would be unable to express herself to the Tribunal in any meaningful way. Dr HC gave evidence that TI "cannot understand the procedure nor communicate the effect the treatment might have"8 to be able to indicate her preference to the proposed treatment.9 TI's interests were represented at the hearing by a separate representative.10
Proposed medical treatment
Dr HC proposed, on behalf of the Tasmanian Health Service ("THS"), that TI undergo a hysterectomy (total laparoscopic hysterectomy with bilateral salpingectomy) in order to alleviate her severe pain and suffering caused by her menstrual cycle.11 TI was reported to suffer very heavy menstruation which was causing a hygiene issue, required her to undergo iron and blood transfusions, caused her pain that was difficult to express and/or treat and her premenstrual symptoms required administration of medication. The predominant and recurrent issue was that by treating TI's continuing cycle of pain during her menstrual cycle, this was affecting the efficacy of the treatment of her seizures. A secondary issue was pain and discomfort from constipation, a side effect caused by the buprenorphine patches used to treat TI's pain experienced during menstruation.12
A hysterectomy is an accepted treatment modality for several medical conditions, including heavy painful menstruation. However, as a hysterectomy is the partial or total surgical removal of the uterus (and may also include removal of the surrounding anatomical structures (cervix, ovaries, fallopian tubes)), it also results in sterilisation.
The law
Consent to medical (and dental) treatment
It is an enshrined principle of health law that a doctor or other health professional must obtain a patient's informed consent before performing a medical procedure,13 subject to established and specific exceptions. There is a presumption that an adult patient has capacity and is capable of giving their consent to medical (and dental) treatment.14
When a patient is not capable of giving consent, and the medical or dental treatment is not a matter of urgency,15 it is necessary to obtain consent from someone else who is authorised to do so, such as the person responsible for the patient or a state-wide civil and administrative tribunal.16 However, a represented person who is the subject of a guardianship order, by consequence of its conferral, is deemed to be a person incapable of making decisions relating to their person, including decisions in relation to their own healthcare. Owing to this, it follows that a represented person is not able to give informed consent to a proposed medical (or dental) treatment ("proposed treatment"), if they are incapable of understanding the nature and effect of the proposed treatment or incapable of indicating if they consent to it being carried out.17
A represented person's guardian is authorised to give consent to medical treatment,18 except when the proposed medical treatment is classified as 'special treatment'.19 Where the proposed treatment is 'special treatment', for it to be carried out lawfully, consent may only be given by the Tribunal20 and must be obtained by application.21
Medical treatment that is 'special treatment'
The definition of special treatment covers medical (and dental) treatment as specified in the Act and the Guardianship and Administration Regulations 2017 (Tas)22 ("the Regulations"). The definition includes23 a proposed treatment "that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out".24
Application for consent to perform 'special treatment'
An application for consent to 'special treatment' being carried out is governed by Part 6 of the Act. The Tribunal must be satisfied that:
- the applicant has a proper interest in the matter;25
- special treatment for which its consent is sought is lawful;26
- the person proposed to receive the special treatment is incapable of giving their consent;27 and
- it is in the person's best interests that the proposed 'special treatment' be carried out.28
Determining the patient's best interests
Section 45(2) of the Act sets out the matters to be taken into account by the Tribunal when determining whether the proposed special treatment would be in the patient's best interests. These relevantly include:
- the wishes, directions, preferences and values of the person (including those expressed in an advance care directive) so far as they can be ascertained;29
- the consequences to that person if the proposed treatment is not carried out;30
- any alternative treatment available to that person;31
- 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;32
- and any other matters prescribed by the Regulations.33
Marion's case
Relevant to the circumstances of TI's case, is the majority view of the High Court of Australia in the decision of Marion's case34, which addressed the approach that may be taken to decide if proposed treatment should be carried out to a person who cannot give consent. In Marion's case, the High Court found that parental authority to consent to treatment was insufficient due to the serious, invasive and irreversible nature of the treatment proposed (sterilisation of a 14-year-old girl). To decide to give consent, the High Court found this required the court to make enquiry and address the question of whether the treatment was in the person's 'best interest'. The High Court espoused that, after its enquiry into and consideration of relevant factors, a court may find that the proposed medical procedure is in the best interests of the person , and that the person should undergo it. A court may then determine the procedure lawful and that it may proceed. A court may then grant its consent to the proposed treatment, or direct that the guardian of the person may consent to the proposed treatment.35
Decision
Application of the law to TI's case
As TI is a represented person, and deemed to lack capacity, it was necessary for someone other than TI to consent to medical treatment. However, as the proposed medical treatment was a hysterectomy which would render TI permanently infertile, it was defined as 'special treatment'36 and TJ, as her guardian, could not give consent. Only the Tribunal, by Dr HC's application, could do so by enquiring as to whether it was in TI's best interests.
Dr HC was accepted to be a person with a proper interest, as he was TI's treating doctor and an appropriately qualified medical practitioner (obstetrician and gynaecologist).37 The Tribunal found the hysterectomy was lawful38 and accepted that TI was a person incapable of giving her consent to the proposed special treatment.39
To determine if the proposed treatment was in TI's best interests, the Tribunal was required to inform itself of, and make its assessment against, those abovementioned factors outlined in section 45(2) of the Act.
TI's wishes
The Tribunal inquired with the parties as to TI's wishes on the proposed special treatment, and it was resolved that her wishes were not able to be ascertained because of her disability.40
Consequences if the proposed treatment did not proceed
The Tribunal was satisfied the evidence showed TI's quality of life was "considerably diminished for a duration of each month due to the menses" as she endured "this same vicious cycle of pain and discomfort" and that these symptoms then caused her to exhibit concerning behaviour.41 TI's general practitioner, "Dr MB", also gave evidence that TI's condition generally had become worse over the years due to her experiencing menstruation, as medication used to treat her pain and discomfort associated with this interfered with the medication used to manage her seizure disorder.42
Alternative treatment
The Tribunal referred to the High Court's view in Marion's case that "sterilisation is a step of last resort" and can only be authorised where "alternative and less invasive procedures have all failed or that it is certain that no other procedure or treatment will work".43 The evidence before the Tribunal was that "all reasonable non-surgical alternatives to the proposed treatment had been unsuccessfully utilised or would be equally futile".44 The evidence as to attempted alternative treatments, by way of example, detailed that TI's inability to tolerate the hormones that form the basis of all contraceptive medication currently available was particularly problematic and the past insertion of a Mirena device had only led to increased pain and bleeding.45 The Tribunal was satisfied, within that context, that the principle from Marion's case that "other procedures or treatment are or have proved inadequate, in the sense that they have failed or will not alleviate the situation"46 had been met.
The Tribunal noted that, while the proposed special treatment would render TI infertile, this was not the motivation for it. The Tribunal highlighted one of the relevant factors for concluding the treatment was in TI's best interests was the inadequacies of other procedures or treatments in that they have failed or will not alleviate the pain and discomfort endured by TI due to menstruation. 47
Postponing treatment
The Tribunal was satisfied that there was no basis for postponing the proposed special treatment.48 The Tribunal heard from Dr HC as to his view that a better treatment being developed was unlikely and it accepted TI would never be able to consent.
Conclusion of reasons
The evidence before the Tribunal made clear that the special treatment was not for a matter of convenience but was intended to alleviate a source of TI's pain and improve her quality of life. As TI is severely impacted by her epilepsy, it was argued that approving the application and allowing her to have a hysterectomy would allow TI to have the best quality of life.49 The Tribunal accepted from the evidence and submissions, noting it was also the "unanimous stance" of all the parties and witnesses involved, that the special treatment is in TI's best interest and that it should grant the application and provide its consent.50
The Tribunal ultimately concluded that it should provide consent for the treatment to proceed.51 Acknowledging the serious consequences, the Tribunal referred to the factors informing its views including the significant pain that menstruation causes TI, the distress she suffers from the pain and associated symptoms, illustrated by the demonstrated challenging behaviors TI exhibits, and the overall impact upon her quality of life every month. The Tribunal held the view that "when viewed in totality...the proposed treatment is in TI's best interests despite the resultant infertility".52
TI's case in Victoria
If Dr HC had brought the application in Victoria, he would be required to seek consent from the Victorian Civil and Administrative Tribunal ("VCAT") for TI to undergo a 'special medical procedure'. 53 The relevant legislative vehicle is found at Part 6 of the Guardianship and Administration Act 2019 (Vic) ("GA Act").54 The definition of 'special medical procedure' is verbatim to 'special treatment' and so includes a hysterectomy.55
However, the test to be adopted by VCAT is not the same as that by the Tribunal in TI's case. 56
VCAT must determine that the patient does not have capacity to give consent, is not likely to regain capacity to give consent in a reasonable time and did not give a direction in relation to the proposed 'special medical treatment'.57 VCAT is not obliged to make a 'best interest' enquiry in relation to a patient undergoing a 'special medical procedure'. Rather, VCAT must apply statutory elements that formulate a 'substituted judgment' test to decide if the patient would undergo the special medical procedure if they were capable of consenting to it. If this is not capable of answer, VCAT must then assess if the proposed medical procedure will promote their wellbeing. In the case of both enquiries, VCAT must consult any relevant person that VCAT believes the patient would want to be consulted in the circumstances.58
In a recent VCAT decision,59 a comparison was made of different jurisdictional approaches to the Victorian approach.60 It was accepted by VCAT that since the GA Act came into effect on 1 March 2020, it is no longer guided by the concept of 'best interests',61 but must now "act in a manner which promotes the represented person's personal and social wellbeing".62 This obligation for a 'rights focus' arises by the powers, functions and duties conferred to it under the GA Act, and VCAT must now proceed according to the principles at sections 8 and 9 of the GA Act. These 'rights focussed' decision-making principles depart from the 'best interests' standard.63 VCAT's approach must now be to act in a manner which emphasises the preferences and wishes of the represented person and involve them in the decision-making process, insofar as that is possible. If this is not possible, VCAT must act to promote the represented person's "personal and social wellbeing".64
First line of enquiry
To determine if it ought to consent, VCAT must first concern itself with determining other factors in relation to the patient, including if the patient gave a valid and relevant values directive or gave any other relevant preferences and the circumstances they were expressed in.65 If there are no patient preferences, VCAT must then consider the patient's values, other than by reference to a values directive, to be inferred from their life.66 VCAT must then also give consideration to the likely effects, consequences and effectiveness, of the special medical procedure, and whether these are consistent with the patient's ascertained preferences and values.67 Additionally, VCAT must consider any alternatives, including if refusing the special medical procedure would be more consistent with the patient's preferences or values.68 If, after VCAT has made enquiry into all of the factors that underpin its first line assessment, it is unable to apply this process to decide if consent ought to be given, it may take a second line of enquiry.69
Second line of enquiry
If VCAT is satisfied the special medical procedure will promote the patient's personal and social wellbeing,70 it must consider the likely effects, consequences and effectiveness, of the special medical procedure.71 VCAT must also consider any alternatives, including if refusing the special medical procedure would better promote the patient's personal and social wellbeing.72 If VCAT is satisfied of these factors, it may give consent to the carrying out of the special medical procedure.
Final remarks
In TI's case, the Tribunal's enquiry which informed its grant of consent was espoused by application of statutory principles concerning 'best interest' while having regard to the principles of Marion's case. The relevant statutory test to undergo a 'special medical procedure' in Victoria diverges from the common law 'best interest' test and includes an assessment of the patient's 'subjective judgment' and 'personal and social wellbeing'. Having regard to the legislative framework and factual enquiry necessary in Victoria, albeit different to that required by the Tribunal in the TI decision, it is likely that VCAT would make a similar assessment to the Tribunal and give its consent in circumstances such as TI's case. The Reasons clearly establish it would promote TI's personal and social wellbeing, that there was not a better alternative, and after consulting any relevant person that TI would want consulted held the 'unanimous' view that it was in her best interest. Noting the Tribunal's Reasons confirm it enquired after TI's wishes, which it established were not ascertainable because of her disability73, in our view, it would be open to VCAT to give consent.
Where a person lacks agency, by reason of incapacity, to decide to undergo medical treatment and the decision is to be made on their behalf, the law dictates a vigorous enquiry is required to warrant such a serious measure being undertaken. A resolution that permanent sterilisation is in the best interest of a person is an even more serious concern. It is clear, notwithstanding the jurisdiction where an application for 'special treatment' is made, that each case will turn on its own facts. From our reading, TI's case is a reminder that the person's best interests will always be a relevant factor in determining if consent ought to be given, weighed against the risk to the patient of the proposed special treatment.
Footnotes
1 TI (Consent to Special Medical Treatment) [2023] TASCAT 105, [1], [29] ("TI's case").
2 TI's case, above n 1, [28]–[29].
3 TI's case, above n 1, [29].
4 TI's case, above n 1, [3].
5 TI's case, above n 1, [29].
6 TI's case, above n 1, [1].
7 TI's case, above n 1, [27], [11].
8 TI's case, above n 1, [27].
9 TI's case, above n 1, [11].
10 TI's case, above n 1, [10].
11 TI's case, above n 1, [22].
12 TI's case, above n 1, [2], [36], [38], [41]-[42].
13 Rogers v Whitaker (1992) 175 CLR 479; Airedale NHS Trust v Bland (1993) 12 BMLR 64.
14 Schloendorff v Society of the New York Hospital (1914) 211 Ny 125 at [129]–[130] per Cardoza J, as adopted by the High Court of Australian in Department of Health & Community Services v JWB & SWB (Marion's Case) (1992) 106 ALR 385; [1992] HCA 15; TI's case, above n 1, [26].
15 In the context of TI's case, see Guardianship and Administration Act 1995 (Tas) s 40 ("Guardianship Act (Tas)").
16 Guardianship Act (Tas), above n 15, s 45(1).
17 Guardianship Act (Tas), above n 15, s 36.
18 Guardianship Act (Tas), above n 15, s 25(e).
19 Guardianship Act (Tas), above n 15, ss 3, 39.
20 Some exceptions apply where the Tribunal has previously given consent to the special treatment being carried out: see Guardianship Act (Tas), above n 15, ss 39(2), 46.
21 Guardianship Act (Tas), above n 15, ss 39(1), 44.
22 Guardianship and Administration Regulations 2017 (Tas) reg 11 ("The Regulations").
23 Guardianship Act (Tas), above n 15, s 3.
24 Guardianship Act (Tas), above n 15, s 3(a).
25 Guardianship Act (Tas), above n 15, s 44(1).
26 Guardianship Act (Tas), above n 15, s 45(1)(a).
27 Guardianship Act (Tas), above n 15, s 45(1)(b).
28Guardianship Act (Tas), above n 15, s 45(1)(c).
29 Guardianship Act (Tas), above n 15, s 45(2)(a).
30 Guardianship Act (Tas), above n 15, s 45(2)(b).
31 Guardianship Act (Tas), above n 15, s 45(2)(c).
32 Guardianship Act (Tas), above n 15, s 45(2)(d).
33 Guardianship Act (Tas), above n 15, s 45(2)(f). There are no other factors at present. See The Regulations, above n 22, regs 11–13.
34 Marion's case, above n 14.
35 Marion's case, above n 14, 385–387, 404–407, 412–415 per Mason CJ, Dawson, Toohey and Gaudron JJ.
36 Guardianship Act (Tas), above n 15, s 3(a).
37 TI's case, above n 1, [21].
38 TI's case, above n 1, [22]–[25].
39TI's case, above n 1, [26]–[33]. The Tribunal had regard to leading authorities; UI (Consent to Special Medical Treatment) [2020] TASGAB 48 citing PBU & NJE v Mental Health Tribunal [2018] VSC 564, [157].
40 TI's case, above n 1, [34].
41 TI's case, above n 1, [40], [46].
42 TI's case, above n 1, [37]–[38].
43 TI's case, above n 1, [47] citing Department of Health & Community Services v JWB & SWB (Marion's case) (1992) 175 CLR 218; [1992] HCA 15, [73]–[74].
44 TI's case, above n 1, [61].
45 TI's case, above n 1, [45]–[62].
46 Marion's case, above n 43, [74].
47 TI's case, above n 1, [62].
48 TI's case, above n 1, [63]–[65].
49 TI's case, above n 1, [66]–[69].
50 TI's case, above n 1, [70]–[74].
51 TI's case, above n 1, [75].
52 TI's case, above n 1, [75].
53 Guardianship and Administration Act 2019 (Vic) ss 141, 145 ("GA Act").
54 GA Act, above n 53, s 143.
55 GA Act, above n 53, s 140(a). In Part 6, "special medical procedure" means "any procedure that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out".
56 GA Act, above n 53, s 145(1).
57 GA Act, above n 53, s 145(1)(a)–(c).
58 GA Act, above n 53, s 145(4).
59 HYY (Guardianship) [2022] VCAT 97 (27 January 2022), [167]–[174] ('HYY').
60 HYY, above n 59, [153]–[166], [175]. In the NT and WA, the treatment needs to be consistent with a person's best interests, taking into account one's views and wishes as much as practicable and the primary concern is the best interests of the represented person respectively. In NSW and QLD, the welfare and interests of the person are given paramount interest and needs to adhere to general principle to ensure that an adult's interests are protected. Whereas, in SA, the legislation recognises the rights of persons with mental incapacity and does not touch on 'best interests'.
61 HYY, above n 59, [168].
62 Andrews & Anor v Andrews & Anor [2020] VSC 31, [61] ('Andrews').
63 GA Act, above n 53, ss 8, 9.
64 Andrews, above n 62, [57]–[62].
65 GA Act, above n 53, s 145(2)(a)–(b).
66 GA Act, above n 53, s 145(2)(c).
67 GA Act, above n 53, s 145(2)(d)(i).
68 GA Act, above n 53, s 145(2)(d)(ii).
69 GA Act, above n 53, s 145(3).
70 GA Act, above n 53, s 145(3)(a).
71 GA Act, above n 53, s 145(3)(b)(i).
72 GA Act, above n 53, s 145(3)(b)(ii).
73 TI's case, above n 1, [34].
