BSE [2020] QCAT 494

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: BSE [2020] QCAT 494 PARTIES: In applications about matters concerning BSE APPLICATION NO/S: GAA5773-20 GAA6812-20 MATTER TYPE: Guardianship and administration matters for adults DELIVERED ON: 7 September 2020 HEARING DATE: 4 June 2020 HEARD AT: Brisbane DECISION OF: Member Joachim Member Ford Member Roylance ORDERS: On 4 June 2020: GUARDIANSHIP The guardianship order made by the Tribunal on 19 September 2018 is changed by appointing the Public Guardian as guardian for BSE for the following personal matters: (a) Accommodation; and (b) Provision of services, including in relation to the National Disability Insurance Scheme. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year. APPLICATION FOR CONSENT TO SPECIAL HEALTH CARE – TERMINATION OF PREGNANCY The Application by Dr WAC for consent to special health care – termination of pregnancy is dismissed with the Tribunal noting that BSE has capacity for the special health matter, namely termination of her pregnancy. CATCHWORDS: HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – OTHER MATTERS – where application for consent to -- 1 of 6 -- 2 special health care – termination of pregnancy – where adult had capacity for special health care matter – where application to review the appointment of a guardian – where adult did not have capacity for some personal matters – where adult required decisions for accommodation and service provision – where the Public Guardian was appointed as guardian for the adult Guardianship and Administration Act 2000 (Qld) ss 31, 71, Schedule 4 Human Rights Act 2019 (Qld) ss 13, 28, 48, 106 Termination of Pregnancy Act 2018 (Qld) APPEARANCES & REPRESENTATION: Adult: BSE Applicant: CN Dr WAC Public Guardian: T Brew K Tilley Interested Person/s: NV – Case Manager, Mental Health REASONS FOR DECISION These are the reasons for decision in relation to BSE. BSE is a 19 year old young woman who is currently in the mental health short stay unit at Mental Health Unit. BSE is approximately 15 weeks pregnant. She has a history of mental illness with severe regular self-harming. In 2007, she was assessed by a neuropsychologist who indicated that BSE had compromised executive skills including poor planning, difficulties with organisation, difficulties in assessing and evaluating options, and with evidence of vulnerability and poor judgment. BSE was the subject of previous applications before the Queensland Civil and Administrative Tribunal, and on the 19th of September 2018 the Tribunal made orders appointing the Public Guardian as guardian to make decisions for BSE in relation to accommodation, services and legal matters not relating to finance or property. The Public Trustee was also appointed at that time. The current service provider for BSE is Hummingbird Care who provide daily support funded through the NDIS. It is common ground that BSE requires some additional support through the NDIS and this has been applied for. There are two current applications before the Tribunal today. The first is from Dr WAC, a gynaecologist, who is seeking the consent of the Tribunal for approval to undertake special health care, that is, termination of pregnancy. The Tribunal has a second application from CN, who is part of the Hummingbird Care organisation. She has applied to the Tribunal seeking a review of the appointment of the Public Guardian -- 2 of 6 -- 3 as guardian for BSE and seeking an additional power to be given to the Public Guardian to cover decisions about health care. On the 12th of May this year, the Tribunal made an interim order appointing the Public Guardian for health care until the application for the review of the appointment of a guardian could be heard. The applications were heard on the 4th of June via video and telephone linkage. The relevant legislation governing these applications is as follows. Section 71 of the Guardianship and Administration Act 2000 (Qld) is the relevant provision in relation to termination of pregnancy. The Tribunal may, for an adult with impaired capacity for a special health matter, consent to termination of the adult’s pregnancy only if the Tribunal is satisfied the termination of pregnancy may be performed by a medical practitioner under the Termination of Pregnancy Act 2018 (Qld). Termination of the adult’s pregnancy to which the Tribunal has consented for the adult is not unlawful. The Tribunal also needs to take into account, when conducting its review of the appointment of a guardian, the relevant aspects of section 31 of the Guardianship and Administration Act 2000 (Qld). The Tribunal needs to consider whether, at the end of the review, the appointment of the guardian should be revoked or alternatively if the Tribunal is satisfied it would make an appointment if a new application were to be made. These applications also invoke various aspects of the Human Rights Act 2019 (Qld) which was recently passed by the Queensland Parliament. In the preamble of the Act there is a statement that, people have a right to self-determination, and decisions made by Tribunals or courts have to be compatible with the Human Rights Act 2019 (Qld). Section 13(2) of the Human Rights Act 2019 (Qld), however, indicates that, in certain circumstances human rights may be limited. Section 28 of the Human Rights Act 2019 (Qld) refers to cultural rights for Aboriginal people and Torres Strait Islander people. The Tribunal understands that BSE identifies being of Aboriginal culture. Section 106 of the Human Rights Act 2019 (Qld) states that the Act does not affect the laws regarding termination of pregnancy. The first matter that the Tribunal will deal with today is, the application for special health care. The Tribunal needs to consider, in the first instance, BSE’s capacity to make that decision. That is, the termination of her pregnancy. “Capacity” is defined in Schedule 4 of the Guardianship and Administration Act 2000 (Qld). To have capacity for a matter an adult has to understand the nature and effect of the decision, has to be able to make the decision freely and voluntarily, and communicate the decision in some way. The Tribunal had the benefit of some recent reports in relation to BSE’s capacity. Dr W, who is the Acting Deputy Director General of Medical Services at the Hospital, indicated that in his view, BSE understood why she wanted a termination of pregnancy and understood the essentials of the procedure in hospital and was emphatic about her wishes. I will refer to other reports shortly. The procedure that is proposed is surgical termination of pregnancy on the 5th of June by Dr WAC and Dr CL, both being medical practitioners under the Termination of -- 3 of 6 -- 4 Pregnancy Act 2018 (Qld). The procedure is to give medication to BSE on the 4th of June, that is today, 24 hours before the procedure. The following day BSE is to be given a further medication a few hours prior to the surgery. Then, BSE is to be given a general anaesthetic under which the procedure would be performed, whereby the cervix would be dilated and the product of the pregnancy evacuated from the uterus with sponge forceps or suction equipment. In addition to Dr W’s assessment, BSE was also seen by Dr P, a psychiatrist. His evidence was that, BSE’s capacity fluctuated and that when she is feeling overwhelmed and unsupported or threatened she decompensates and reverts to what he describes as “primal responding”. That is, she has difficulty making decisions with fluctuating capacity and temporary loss of capacity in an unpredictable manner. He goes on to say that, when seen alone and BSE is not distressed, she has shown the ability to weigh up pros and cons of her decisions, including personal matters and complex ones, such as the special health matter. He indicated that in March 2020 BSE was able to discuss the risks and benefits of this pregnancy with sound arguments, appeared to have intact capacity, and was able to explore the difficulties she may have if she were to continue the pregnancy including the ability to care for a new born. He also described some subsequent uncertainty. The applicant, Dr WAC, advised that BSE had presented to the antenatal clinic on the 27th of May at the Hospital, requesting a termination of her pregnancy, indicating that, due to her mental health she was not ready to have the baby and advising that her mental health had deteriorated during the pregnancy. She indicated she had discussed with BSE options regarding the termination of pregnancy and the associated risk, and that BSE wished to go ahead with the surgical termination of the pregnancy as Dr WAC thinks it would be less traumatic for her physical and mental health. Dr WAC reinforced these views at the hearing today. BSE indicated to the Tribunal that she was concerned about her mental health. She indicated to the Members that she believed she had adequate support in place pre- termination and post-termination. She wants to “get her life sorted”, in her terms. She had very definite views expressed to the Tribunal about wanting the termination to proceed. She indicated a good understanding of the procedure, and some understanding of the possible complications, but not fully. The Tribunal also received the views of the separate representative from the Public Guardian’s office, appointed by the Tribunal. The view of the separate representative was that BSE was very clear about what she wanted. That is, the termination. The separate representative recorded that BSE did not appear under any undue pressure and that her mental health had deteriorated since the pregnancy. Her guardian indicated that, initially when she spoke to BSE, BSE was expressing concerns about her boyfriend seeking an abortion on her behalf. BSE has since come to the view she wants the termination and she is quite clear on her views in that regard. The views of the Tribunal The Tribunal has taken all of the information provided into account and has come to the view that, BSE does have capacity to make the decision to have the termination of her pregnancy undertaken. The Tribunal believes she understands the nature and effect of the decision. She communicated very clearly to the Tribunal her views and wishes, and the Tribunal is satisfied that she was not subject to undue influence and that she could make this decision freely and voluntarily. -- 4 of 6 -- 5 The Tribunal believes it is more likely than not that BSE will not change her mind, which was a concern of the applicant. The applicant is concerned that BSE may change her mind after she receives the pre-op medication. The Tribunal considers this is a very low possibility, and in the circumstances does not feel it appropriate to intervene in the light of BSE’s ability to make her own decisions. The application for the Tribunal to consent to special health care will therefore be dismissed. The Tribunal will note in the order that, BSE has capacity to give consent to the special health care, namely termination of pregnancy. The second matter that the Tribunal is dealing with today is the application for a review of the Public Guardian’s appointment. The Tribunal takes into account in making decisions about this, that pregnancy termination is a once off decision and, in many ways, could be described as a relatively black and white decision, even though it is an extremely serious decision. Decisions in relation to personal matters for which the Public Guardian is currently appointed, are ongoing. The decisions around service provision, accommodation and health care, are not one-off decisions and ones which have quite significant consequences if a wrong decision is made. The Tribunal has to apply the same test in relation to capacity. That is, understanding the nature and effect of decisions, being able to make decisions freely and voluntarily about the matter, and communicating the decision in some way. In this regard the Tribunal does take into account the earlier report of the neuropsychologist even though it is some three years old. The evidence of BSE’s behaviours of harm suggest that many of the conclusions of the neuropsychologist were correct. The Tribunal considers, on the balance of probability that BSE does not have capacity for some personal matters because of her lack of understanding of consequences, but particularly because of her emotional dysregulation and the problems that she has making decisions when distressed. The Tribunal therefore finds that, BSE does have impaired capacity for some personal matters. Is there a need to appoint a guardian? The Public Guardian indicated that they have made a number of decisions in relation to health care through the Statutory Health Attorney Regime. These have been medical consents relating to self-harm. The Public Guardian has made some service delivery decisions since 2019, and one accommodation decision. The Public Guardian has advised in a report that BSE has requested to change accommodation to enable her to reside with her partner and to be able to receive fulltime supported accommodation. A decision will be required in the near future regarding accommodation matters. In relation to the service provision, the Public Guardian advises BSE is a participant in the NDIS. It’s likely that further decisions will be required with regard to service provision matters. BSE has also requested to change service providers for accommodation support, and this decision is currently in progress. In relation to legal matters, all charges before the Magistrates Court were finalised on the 9th of April and there are no ongoing legal matters. The Public Guardian has not made any health care decisions under the interim order, however, have made a significant number of decisions under the Statutory Health Attorney Regime. There is also an application with the NDIS to review the support for BSE as she appears to require additional support around her as she becomes distressed, mainly at times when she does not have the necessary support. The Tribunal would note at this -- 5 of 6 -- 6 point that, during the hearing when BSE had support around her, she was able to answer the Tribunal’s questions very comfortably without showing any real signs of distress. BSE was quite lucid in what she had to tell the Tribunal, and she is to be commended for her calmness today. In relation to accommodation, it is evident that there is a need for decisions about accommodation and depending upon the day it’s said that BSE’s view fluctuates, depending upon her mental state. The Public Guardian made a recommendation that there be no guardian appointed for legal matters, that the Public Guardian be appointed to make decisions about accommodation and service provision, noting that, in making the accommodation decision it would play a supportive role for BSE when she is well enough to make her own decisions. In relation to health care, the Public Guardian advised that the Statutory Health Attorney Regime has worked reasonably well. The Tribunal also sought the views of the applicant and she advised that there was a need for a guardian to make decisions about accommodation and services to ensure appropriate decisions were being made. She also expressed concerns in relation to health care, noting that BSE had declined medical procedures that were necessary, and had self-discharged against medical advice. NV who works for Community Mental Health, advised that she believed BSE has fluctuating levels of capacity and when more complicated decisions are required BSE becomes distressed, advising that, when BSE is unwell her level of capacity declines. At the hearing today she advised that BSE had voluntarily engaged with Mental Health Services for her wellbeing, and when she’s calm, she can make her own decisions. She believes that BSE can make her health care decisions but she would do better if she had the support of the Public Guardian in relation to accommodation and service delivery decisions. BSE’s own views are that the NDIS is complicated and it would be good for the Public Guardian to be involved. She thinks that she is able to do her accommodation decisions herself but noted this can be stressful for her. She also stated that she can do her own health care. The Tribunal has formed the view that the Public Guardian should remain guardian, but the powers changed to be limited to accommodation and service delivery, including the NDIS, on the basis that the Statutory Health Attorney Regime can be invoked, if required, for health care. In making its decisions today the Tribunal has taken into account the Human Rights Act 2019 (Qld), in particular section 48, which says, “the tribunal must interpret statutory provisions to the extent possible that’s consistent with their purpose in a way that it’s compatible with human rights.” BSE’s right to self-determination and protection from being subject to medical treatment without her full free and informed consent are engaged with the Act. Taking into account the Tribunal’s findings in relation to capacity, need and appropriateness in accordance with the Guardianship and Administration Act 2000 (Qld), the Tribunal is satisfied that the limits imposed by the guardianship order are reasonable and justified in accordance with section 13 of the Human Rights Act 2019 (Qld). -- 6 of 6 --