MS BA [2026] WASAT 99

[2026] WASAT 99 Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : MS BA [2026] WASAT 99 MEMBER : JUDGE H JACKSON, DEPUTY PRESIDENT JUDGE W GILLAN, SUPPLEMENTARY DEPUTY PRESIDENT DR E MARILLIER, SENIOR MEMBER HEARD : 19 AUGUST 2026 DELIVERED : 21 AUGUST 2026 PUBLISHED : 21 AUGUST 2026 FILE NO/S : GAA 4890 of 2026 MS BA Proposed Represented Person MR CD Applicant Catchwords: Application for consent to abortion on person who lacks capacity to make decision - Best interests - Turns on own facts Legislation: Guardianship and Administration Act 1990 (WA), s 4, s 45, s 110ZLA, s 110ZLB, s 110ZLC, s 110ZNB, s 110ZNC, s 110ZND, s 110ZND(1), s 110ZND(1)(b), s 110ZND(2) -- 1 of 22 -- [2026] WASAT 99 Page 2 Result: Consent to abortion given Category: B Representation: Counsel: Proposed Represented Person : L Cassidy Applicant : In Person Solicitors: Proposed Represented Person : Mental Health Law Centre Applicant : N/A Case(s) referred to in decision(s): BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 44; (2024) 282 CLR 253 C [2024] WASAT 50 Director Clinicial Services, Child & Adolescent Health Services & Kiszko [2016] FCWA 75; (2016) 312 FLR 319 EW [2021] WASAT 111; (2021) 103 SR (WA) 209 Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423 JC [2026] WASAT 13; (2026) SR (WA) 99 R v Gyngall [1893] 2 QB 232 Re a Patient Fay [2016] NSWSC 624 Secretary, Department of Health & Community Services v JWB [1992] HCA 15; (1992) 175 CLR 218 -- 2 of 22 -- [2026] WASAT 99 Page 3 REASONS FOR DECISION OF THE TRIBUNAL: In the interests of expedition, these reasons were read out as oral reasons. At the time we explained that we did so for the purposes of timeliness and that written reasons would be published shortly. The following departs from what was read out only in immaterial ways. It also includes footnotes, including, for the citation of legal authorities, headings and the provision of quote marks, which were not noted in the reading. Introduction 1 Ms BA is a young woman of 22 years of age. 2 Unfortunately, she has been, and remains, an involuntary patient at Royal Perth Hospital (RPH), suffering from psychosis. 3 Orders were recently made appointing her parents as her guardian, with different functions. Her mother (Ms FD) was appointed as limited guardian with responsibility for medical treatment decisions. 4 Ms BA is also pregnant. 5 Ms BA has expressed her wish to terminate the pregnancy, although she has also expressed the opposite. 6 The scope of Ms FD's functions as Ms BA's guardian for medical treatment decisions does not encompass the decision whether or not to terminate Ms BA's pregnancy. 7 Indeed, absent the Tribunal's consent, if Ms BA lacks capacity to make reasonable judgments about the decision to terminate her pregnancy, it is illegal to carry out that procedure. 8 Her father, Mr CD, has applied to the Tribunal for its consent to the termination of the pregnancy. 9 There are two main questions for us: a. Does Ms BA have capacity to make 'reasonable judgments in respect of whether or not [an] abortion should be performed on her'? b. If not, would the performance of an abortion be in Ms BA's best interests. 10 For the reasons that follow we are satisfied that: -- 3 of 22 -- [2026] WASAT 99 Page 4 a. Ms BA does not have the capacity to make reasonable judgments in respect of whether or not an abortion should be performed on her; and b. The performance of an abortion would be in Ms BA's best interests. The Law 11 This proceeding was brought by Mr CD under s 110ZNB of the Guardianship and Administration Act 1990 (GA Act).1 12 Section 4 sets out certain principles which must guide all decisions made under it by the Tribunal. They may be summarised as follows: a. All persons are presumed to have capacity to make reasonable judgments that affect them and their interests. That presumption may be displaced, but only by clear and cogent evidence. b. The primary concern is the best interests of the subject person (i.e. Ms BA). c. The wishes of a person in respect of whom a decision is to be made must be ascertained if at all possible. That is not to say that such wishes must be followed, just that they must be ascertained. d. A decision may only impinge on the rights and freedoms of the subject person to the extent necessary to pursue their best interests. 13 Under s 110ZLA and s 110ZLB, it is illegal to perform an abortion on a person who is 18 years of age or older and who is 'unable to make reasonable judgments in respect of whether or not the abortion should be performed' on them unless: a. There is an advanced health directive in place, in which case the decision must be made in accordance with that directive; or b. The Tribunal has consented to the performance of the abortion. 14 Section 110ZNB allows various people to apply to the Tribunal asking it to consent to the performance of an abortion, including the 1 All references to sections of legislation are references to sections of the GA Act. -- 4 of 22 -- [2026] WASAT 99 Page 5 parent of a person on whom the abortion is proposed to be performed. In this case, the application was made by Mr CD, Ms BA's father. 15 Section 110ZNC requires certain people to be provided with notice of a hearing to determine the application. That includes that notice be given of certain matters to the applicant and the person upon whom the abortion is proposed to be performed. We are satisfied that such notice was provided. 16 Once a hearing has been conducted, the Tribunal has the power to consent to the performance of an abortion, including on conditions, on a person who is 'unable to make reasonable judgments in respect of whether or not the abortion should be performed on them' - s 110ZND. 17 Once made, the Tribunal's decision has effect 'as if it were a treatment decision made by the person in respect of the performance of the abortion on them and as if the person were of full legal capacity' - s 110ZLC. 18 Section 110ZND(1) sets out the criteria of which the Tribunal must be satisfied before consenting to the performance of an abortion. Those criteria are as follows: a. That the person on whom the abortion is proposed to be performed is at least 18 years of age; b. That that person is 'unable to make reasonable judgments in respect of whether or not the abortion should be performed on them'; c. That that person has not made an advanced health directive containing a treatment decision that is inconsistent with the performance of the abortion; and d. That the abortion is in the best interests of the person. 19 In determining whether the abortion is in the best interests of the person, we must, pursuant to s 110ZND(2), take into account: a. Any wishes of the person, so far as they can be ascertained; and b. Whether the person is likely, in the foreseeable future, to regain the ability to make reasonable judgments in respect of whether or not the abortion should be performed on them. -- 5 of 22 -- [2026] WASAT 99 Page 6 20 Those two matters are not the only two matters to which we may have regard in determining whether the abortion is in the best interests of the person. We may take into account other matters, although there are no other matters identified in the GA Act. We must, however, take those two matters into account. 21 We now address each of those criteria in turn. Ms BA is at least 18 years of age 22 We are satisfied that Ms BA is at least 18 years of age. 23 Her date of birth, which is given on four reports provided to us by medical and allied health professionals indicates that she is 22 years of age.2 Ms BA has not made an Advanced Health Directive 24 While the possibility of an advanced health directive did not arise at the hearing, we are satisfied that Ms BA has not made an advanced health directive containing a treatment decision that is inconsistent with the performance of the abortion due to three matters: a. First, it would be most unusual for a person of Ms BA's age to make an advance health directive; b. Secondly, no one at the hearing suggested that one might have been made; and c. Thirdly, Mr CD's evidence was to the effect that, prior to becoming unwell, Ms BA had said to him that she did not want to have children. In those circumstances, even if Ms BA had made an advance health directive, we consider it unlikely that it would include a treatment decision that is inconsistent with the performance of the abortion. 2 On three reports, her date of birth is given as 31 July 2004. On one of them it is given as 30 June 2004. The difference appears likely to be a typographical error. Either way, she is 22 years of age. -- 6 of 22 -- [2026] WASAT 99 Page 7 Ms BA is Unable to Make Reasonable Judgments about whether an Abortion Should be Performed Guardianship Orders Do Not Preclude a Finding of Capacity 25 We turn then to whether Ms BA is able to make reasonable judgments in respect of whether or not the abortion should be performed. 26 On Monday (17 August 2026), a decision was made to grant powers of guardianship to: a. Ms BA's mother (Ms FD) as to medical treatment decisions; and b. Ms BA's father (Mr CD) as to accommodation, services, contact and legal functions. 27 A necessary pre-condition to that decision was that Ms BA is incapable of looking after her own health and safety, unable to make reasonable judgments in respect of matters relating to her person or in need of oversight, care or control in the interests of her own health and safety. 28 That decision does not mean, however, that Ms BA is necessarily unable to make reasonable judgments about whether an abortion should be performed on her. 29 That is because legal capacity is context specific. That is, whether a person is able to make reasonable judgments will depend on various factors, including the specific issue in question.3 That is, at a particular point in time, a person may have capacity to make some decisions but not others. 30 As the Tribunal said in C:4 … while Ms AB has been previously found by the Tribunal to lack the capacity to make reasonable judgments in respect of matters relating to her person, that is a broad judgment made by the Tribunal which is not directed to the specifics of particular decisions. In contrast, the present case calls for analysis of what is involved in the question of capacity to make a specific decision, namely a reasonable 3 Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423, 438; BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 44; (2024) 282 CLR 253, [86] (Jagot and Beech-Jones JJ). 4 C [2024] WASAT 50, [37] - [38]. -- 7 of 22 -- [2026] WASAT 99 Page 8 judgment as to whether or not an abortion should be performed on a person. The question is whether Ms AB is able to make judgments of that kind as at today. 31 That, then, requires us to ask whether Ms BA is capable of making a decision about whether an abortion should be performed. 32 In C,5 the Tribunal also referred to common law decisions and appeared to draw from them the following matters as necessary elements that go to whether a person has the capacity, as at today's date, to make the relevant decision: 1. Does the person have the ability to comprehend, believe and retain information which is material to the decision in issue and, in particular, the consequences of the decision; and 2. Does the person have the ability to use and weigh that information (to balance it) as part of the process of making the decision in issue? 33 We note that Sackar J of the NSW Supreme Court used very similar language in Fay.6 34 The Tribunal in C also appears to have considered that, in considering those factors, we must:7 1. be satisfied that the person is able to sufficiently understand the 'nature, purpose and effect' of the procedure; 2. have regard to the importance of the decision to the person; and 3. be confident that the person's volition has not been overborne by undue influence or some other factor. 35 Necessarily, the ability of a person to 'comprehend, believe and retain information' which is material to a decision to perform an abortion, will turn, in part, on the scope and nature of knowledge we consider 'material' to that decision. 36 In that regard, we respectfully adopt the following passage from C:8 5 C [41] - [44]. 6 Re a Patient Fay [2016] NSWSC 624, [37]. 7 See, also, Re a Patient Fay [2016] NSWSC 624, [39] - [40]. 8 C [45]. -- 8 of 22 -- [2026] WASAT 99 Page 9 …we do not consider that a person needs to be able to demonstrate a level of sophisticated medical knowledge in order to be able to make a reasonable judgment in respect of a decision such as whether to have an abortion. We think it is sufficient if they are capable of understanding the main elements of the procedure, and its risks and consequences, rather than the technical or exact details of the treatment or its effect. The Evidence The Written Reports Filed Before the Hearing 37 Before the hearing commenced, we received written reports from members of Ms BA's treating team at RPH as well as from members of King Edward Memorial Hospital (KEMH)'s Pregnancy Choices and Abortion Care clinic. 38 Ms BA has been an inpatient at RPH since 19 July 2026, after presenting to RPH's emergency department a few days prior. Clinicians at RPH have, therefore, had the benefit of interacting with and treating Ms BA for more than four weeks. 39 On 13 August 2026, we received written reports from Dr Y and Mr W. Dr Y is a psychiatric registrar at RPH while Mr W is a social worker there. 40 Dr Y's written report said that Ms BA suffers from psychosis, and, while it was initially thought that it was drug induced psychosis, the 'persistent nature of her symptoms and protracted recovery suggest a primary psychotic illness'. 41 Dr Y described Ms BA as 'acutely unwell' and said that Ms BA: demonstrates impairment in decision making capacity in relation to the pregnancy, fluctuating markedly between wishing to continue to the pregnancy and wishing to pursue termination of pregnancy (TOP), sometimes changing her decision within the same day. She is unable to consistently understand, retain, weigh or use information relevant to this decision. 42 Mr W's report was to the same effect. 43 Ms BA attended clinicians of KEMH's Pregnancy Choices and Abortion Care clinic once, on Tuesday 18 August 2026, the day prior to the hearing. The evidence was that her consultation at KEMH was with several clinicians over what we understood was several hours. -- 9 of 22 -- [2026] WASAT 99 Page 10 44 Dr P, a medical practitioner at the KEMH clinic provided a written report on 18 August 2026, as did Ms J, a social worker at KEMH. 45 Dr P's written report stated that: [Ms BA] was consistent in her desire to seek abortion care throughout [her] consultation … [Ms BA] was aware the appointment was for abortion care and chose to attend. She asked for reassurance that abortion care would be provided to her and was seeking to have a date for the abortion confirmed. She engaged well throughout consultation and asked appropriate and insightful questions about the options and risks of the procedures. The Order of Witnesses 46 Before briefly describing their evidence, it is useful to note the order in which we heard evidence - we first heard from Ms BA, then from the RPH treating team, the KEMH clinicians, Mr D from the Office of Public Advocate, Ms BA's parents and then again from Ms BA. The evidence given by Ms BA was markedly different the second time she spoke with us, compared with the earlier evidence. As a result, we then heard briefly again from the doctors. The Evidence at the Hearing 47 In giving her initial evidence, Ms BA was clear and consistent that she wanted an abortion. She explained her position by saying that she did not see her future as a mother but, rather, as pursuing a role in the military or cyber-security - an office job. She agreed that she had previously told people that she wanted to keep her baby but said that was because she wanted to avoid people making judgments about her desire for an abortion. 48 She described the advice she had received from Dr P in sufficient detail for us to be satisfied that she had a reasonable understanding as to what she had been told and that she had retained a reasonable amount of that information. 49 She was also able to speak of some of the risks associated with such a procedure including the possible need for a blood transfusion and intubation. 50 When asked about the pros and cons of proceeding with the procedure, she was able to identify the benefits as she saw them and said that she could not see any downside. -- 10 of 22 -- [2026] WASAT 99 Page 11 51 While, on the whole, her initial evidence was largely clear and consistent, she did also say at one stage that there was 'plenty of time' to learn about raising children, which might be considered somewhat inconsistent with her evidence to the effect that she never wanted to have children. 52 She also gave evidence which indicated her current fragile mental state, including a threat of suicide if she was unable to access an abortion. 53 We then heard from Ms BA's treating consultant psychiatrist, Dr PL. His initial evidence was very much to the same effect as Dr Y's written report in relation to the majority of Ms BA's time as an involuntary patient at RPH. 54 He said that during that time she had been medicated for psychosis but that, while there had been some improvements, she remained unwell and her wishes about terminating her pregnancy continued to fluctuate. 55 However, he said that over the last couple of days - 48 to 72 hours - prior to the hearing Ms BA had remained clear and consistent in expressing her desire to terminate her pregnancy. Indeed, he said that he considered that her psychosis was no longer impacting on her ability to make a decision about her pregnancy. 56 Having heard Dr P's evidence, Dr Y concurred and did not wish to add anything. 57 Mr W's evidence was that his written report was largely taken from discussions he had had with other members of the team such that he could not add anything to what had been said. 58 He was asked about his role in supporting Ms BA through the few days prior to the hearing and that of the hearing itself. They included the guardianship hearing on Monday 17 August 2026, a hearing in the Mental Health Tribunal and her consultation at KEMH on Tuesday 18 August 2026 and, then, the hearing before us on Wednesday 19 August 2026. He said that he noted that her ability to understand and retain information had suffered over the last few days which he attributed to the stress on Ms BA as a result of multiple hearings in short succession. -- 11 of 22 -- [2026] WASAT 99 Page 12 59 Dr P then gave evidence, which was consistent with that of her written report. She said that Ms BA had, in her consultation, been consistent that she wished to have an abortion. 60 Dr P gave examples of her interaction with Ms BA that she said demonstrated that Ms BA had made decisions during that consultation which indicated that she (Ms BA) had understood the advice given to her and had retained that information. 61 When asked whether her consultation with Ms BA was, save for breaks which would not ordinarily be offered to patients, within the 'normal' range, Dr P did note that there had been a degree of disorganisation from Ms BA but said that Ms BA appeared to understand the advice given, asked reasonable questions and made reasonable demands. 62 Ms M is the midwifery and nursing lead for the Pregnancy Choices and Abortion Care team at KEMH. While she had not met with Ms BA, she spoke with those members of the team who had met with her and said that they described their interaction with Ms BA in similar terms to those used by Dr P. She said that while Ms BA had said or done things which indicated that she was unwell, her 'ability to sit though' lengthy consultations 'with multiple clinicians' was something many of the 'cohort' seen by her team - which focuses on 'high risk' women - were unable to do. 63 Ms M also spoke of conversations in which Ms BA said that her decision was her own and not the result of influence from someone else. In a similar way, the written report of Ms J said that she had confirmed with Ms BA that her wish to have an abortion was not the result of the influence of others. 64 At the hearing Ms J agreed with her KEMH colleagues, saying that she was satisfied that Ms BA had understood the advice given to her and had been clear that she did not want to be pregnant. 65 Mr D said that he had spoken to Ms BA at 12.15 pm on Wednesday 19 August 2026, only shortly before the commencement of the hearing before us, and had done so for about 25 minutes. 66 Within that 25 minutes he saw, in effect, two very different sides to Ms BA. He said that, at first, Ms BA spoke quickly and covered several topics, not all of which he could follow. He said that Ms BA was fixated on getting out of RPH's mental health unit and that she was -- 12 of 22 -- [2026] WASAT 99 Page 13 very unhappy there. She was very clear that she wanted an abortion, saying that she wanted the baby 'out of there'. 67 He said that the conversation ended when Ms BA started crying. He then stood up and left the room but was brought back by the nurse who had been present but had not participated in the conversation. 68 Upon his return, Mr D said that Ms BA spoke less and was calm, but that after briefly speaking about her boyfriend, she repeated six or seven times that she was 'going to have the baby'. 69 We then heard from Ms BA's parents. 70 They both gave evidence to the effect that Ms BA has recently - in the last few days - been coherent and consistent in the expression of her wishes about terminating her pregnancy. They both also described various abuses suffered by Ms BA at the hands of her boyfriend, including sexual abuse. 71 We then heard from Mr C, from the Mental Health Law Centre, who represented Ms BA. Mr C made sensible but brief submissions which included that the evidence was not so 'clear and cogent' as to allow us to conclude that Ms BA 'is unable to make reasonable judgments in respect of whether or not the abortion should be performed' on her. 72 Given the evidence as summarised above, Mr C's submission had some considerable strength. However, what happened next considerably undermined it. 73 We then returned to Ms BA. As the person at the centre of this application, we considered it appropriate to give her both the first and last word. 74 We asked her whether her wish to terminate her pregnancy was informed by the experience of abuse described by her parents. 75 Her answer was very much at odds to the evidence she had previously given but was, also, disjointed and tangential. 76 In effect, she expressed a firm desire to continue with the pregnancy. In doing so, she did not acknowledge that that wish was inconsistent with her expressed desire only a couple of hours prior. As a result there was also no attempt to explain or justify her change in position. -- 13 of 22 -- [2026] WASAT 99 Page 14 77 She said that she wanted to continue the pregnancy and to attend a community centre, where drug testing was available. She spoke of being driven mad by being an inpatient at RPH and that she would catch the bus to her boyfriend's house and that 'he would protect me and the baby'. She said that if she could leave 'this place' (i.e. RPH) she would have the baby. She said that she wanted to be a 'mum'. 78 We then heard briefly from Dr PL and Dr P. 79 Dr PL described the rapid and complete change in Ms BA's wishes and presentation in the hearing as consistent with the treating team's experience of Ms BA over the previous few weeks. He said that Ms BA's change in wishes and her altered presentation more generally was likely to be the result of the stress generated by the hearings and consultations of the past few days. 80 He then withdrew his previous evidence to the effect that Ms BA had capacity and said that, in his view, Ms BA lacks capacity to make reasonable judgments about terminating her pregnancy. 81 Dr P was also invited to respond to Ms BA's later evidence. She said that what we had just experienced from Ms BA was 'obviously concerning' and that Ms BA had just 'presented in a very different manner to how she presented yesterday [i.e. on Tuesday 18 August 2026]'. Consideration and Findings as to Capacity 82 Based on the evidence that we have just outlined, we are satisfied that Ms BA is unable to make reasonable judgments in respect of whether or not an abortion should be performed on her. 83 That is not a decision that we make lightly. Despite very considerable stress, Ms BA was able to maintain a consistent position for a couple of days, that she wished to terminate her pregnancy. In doing so, she was able to understand and retain information relevant to that decision and to make decisions which members of the KEMH team considered sensible and informed by relevant factors. 84 However, the evidence of Mr W is that he experienced a diminution in Ms BA's ability to retain and understand information as she fatigued. It would appear that that process continued into her interview with Mr D where the stress and fatigue of the past few days led to Ms BA presenting very differently, and expressing very different -- 14 of 22 -- [2026] WASAT 99 Page 15 wishes, in a very short period of time. Ms BA's presentation in the hearing was a further example of that. 85 While the stress and trauma of multiple hearings will not be repeated, Ms BA may well continue to experience elevated stress levels for some time. The evidence is that she will likely be an involuntary patient at RPH for some time yet and it is clear that that experience is causing her very considerable distress. Equally, the evidence from several witnesses is that the Ms BA is distressed, at least at times, by the physicality of the pregnancy itself. 86 In short, we find that there is a real possibility that Ms BA will continue to fluctuate in her wishes about terminating her pregnancy, albeit that if she continues to respond to treatment any fluctuations may become less frequent. 87 To be clear, we are satisfied that Ms BA's change of position and fluctuating wishes is no mere ambivalence. 88 Ambivalence about a pregnancy is not uncommon. Having a child is a major life decision that brings with it major life changes which for many mothers are not always seen as entirely positive. 89 However, such ambivalence in a woman with capacity to make reasonable judgments about her pregnancy seems to us likely to be characterised by a recalibration of the weight given to the same, or similar set of, factors together with an ability to acknowledge that her current position differs from her former and the ability to explain why she is currently giving different weight to one or more factors than she gave previously. 90 That is quite different to AB's presentation. In expressing wishes inconsistent with those previously presented, she does not appear to acknowledge the inconsistency and neither does she seek to, or seem able to, explain it. Indeed, the explanations are so different as to persuade us that the factors relevant to each decision appear to be entirely different each time and, indeed, her expression of reasons appear likely to be after the fact justifications for a change in position which Ms BA does not even recognise. 91 In short, we are satisfied that, as at today, Ms BA is unable to make reasonable judgments as to whether or not to terminate her pregnancy and maintain that position for long enough to demonstrate -- 15 of 22 -- [2026] WASAT 99 Page 16 that she has weighed the competing factors and reasoned her way to an outcome. 92 That is, for the purposes of s 110ZND(1)(b), we are satisfied that Ms BA is unable to make reasonable judgments in respect of whether or not an abortion should be performed on her. Is an Abortion in The Best Interests of Ms BA? 93 As previously noted, we must consider whether or not to give our consent to the performance of an abortion on Ms BA is in Ms BA's best interests. 94 In doing so, we must consider, at least, Ms BA's wishes and the question whether she is likely 'in the foreseeable future', to regain her capacity to make reasonable judgments about terminating her pregnancy. Ms BA's Wishes 95 In light of the evidence given by Ms BA, as well as that of the RPH treating team, it is unclear to us what Ms BA's wishes are. 96 That is, while she appears to have been in favour of terminating her pregnancy more often than not, and to have been reasonably consistent in that regard in the two or three days leading up to the hearing, there appears to have been an alternative view expressed frequently and regularly. Indeed, as the evidence shows, sometimes the alternative view is expressed very soon after the predominant one. 97 As a result, we consider ourselves unable to give much weight to her wishes, but to the extent that we give them weight, that weight falls on the side of a termination, given its predominance. Is Ms BA Likely to Regain the ability to make a decision in the foreseeable future? 98 The evidence is that Ms BA has received anti-psychotic treatment since about 19 July 2026 - more than four weeks. 99 Despite that treatment, she remains psychotic and, as we have just found, unable to make reasonable judgments in respect of whether or not she should have an abortion. 100 Dr PL's evidence was Ms BA has seen improvement in her condition as a result of her treatment. He also said that any -- 16 of 22 -- [2026] WASAT 99 Page 17 improvement sufficient for discharge is likely to be some time away - a time measured in weeks. 101 He did not express a view as to when Ms BA might regain her ability to make the relevant decision. 102 We note that, in the circumstances of Ms BA's pregnancy, the 'foreseeable future' must concern quite a short timeframe. 103 That is because as at the day of the hearing, Ms BA was 18 weeks and 5 days pregnant. That means that any surgical abortion must be performed very soon; the evidence was that surgical abortions will not be performed after 19 weeks and 6 days. 104 Indeed, the evidence is that next Tuesday (25 August 2026) is the last day on which that might occur and that, in order for Ms BA to be on that list, steps must be taken by this afternoon (Friday 21 August 2026) such that it was indicated we needed to give our reasons by lunchtime today. 105 In short, we find that Ms BA is most unlikely to regain her capacity in order for her to decide to have a surgical abortion, which she expressed as her strong preference when she was in favour of an abortion at all. What Does 'Best Interests' Mean? 106 The GA Act does not define the phrase 'best interests', either generally or by reference to this decision, and neither does not it identify relevant factors, save for those discussed above. 107 We have had regard to various cases, most of which are not terribly helpful. No disrespect is intended in that regard because the phrase is inevitably contextual9 such that any description or list of factors will tend towards the unhelpfully generic. 108 As O'Brien J said in Kiszko, which concerned the question whether a young child should undergo cancer treatment against her parent's wishes:10 The determination of best interests is not a precise science. It is multifaceted and complex. It is susceptible to very different 9 EW [2021] WASAT 111; (2021) 103 SR (WA) 209, [23]. 10 Director Clinicial Services, Child & Adolescent Health Services & Kiszko [2016] FCWA 75; (2016) 312 FLR 319 at [101], cited in JC [2026] WASAT 13; (2026) SR (WA) 99, [28]. -- 17 of 22 -- [2026] WASAT 99 Page 18 conclusions being drawn by different people of equal compassion, sincerity and integrity. 109 In our view some guidance is to be found by analogy in s 45 of the GA Act which provides that a guardian's authority is to be understood by reference to the functions and role of a parent. 110 The same approach is taken in the somewhat analogous parens patriae jurisdiction. In a passage approved by Brennan J in Marion's Case,11 Lord Esher MR said of that jurisdiction in R v Gyngall:12 The court is placed in a position by reason of the prerogative of the Crown to act as supreme parent of children, and must exercise that jurisdiction in the manner in which a wise, affectionate, and careful parent would act for the welfare of the child. 111 The analogy of a parent is also helpful in another way in that it suggests that we should give the views of Ms BA's parents as to her best interests the weight that such a relationship warrants.13 112 In what follows, we have done our best to follow that guidance - we have sought to identify relevant matters, to recognise where there may be a tension pulling in different directions, to weigh each matter, and to proceed to a decision in a cautious and proportionate manner. 113 Before continuing, we note that our considerations in this regard are confined to what we consider to be Ms BA's best interests; there is no role in our considerations for the interests of Ms BA's unborn baby. Relevant matters 114 We start with Ms BA's current circumstances. 115 Ms BA spoke about her distress at the loss of her privacy and bodily autonomy associated with her inability to make her own decisions about whether or not to terminate her pregnancy. 116 Dr P and Ms J's evidence was that Ms BA had expressed to them that she was very upset with the physical experience of pregnancy. Ms J said that Ms BA had said to her that babies are 'disgusting', Dr P 11 Secretary, Department of Health & Community Services v JWB [1992] HCA 15; (1992) 175 CLR 218, 280 (Marion's Case). 12 R v Gyngall [1893] 2 QB 232 at 241. 13 Director Clinicial Services, Child & Adolescent Health Services & Kiszko [2016] FCWA 75; (2016) 312 FLR 319 at [98], [67] - [69] cited in JC [2026] WASAT 13; (2026) SR (WA) 99, [29]. -- 18 of 22 -- [2026] WASAT 99 Page 19 said that the changes to her body caused by the pregnancy were causing Ms BA distress. 117 The RPH team also gave evidence that Ms BA was trying to access hand sanitizer and was both trying to ingest it and rub it on her abdomen in ways that they understood was an attempt to bring on an abortion, a sentiment that Ms BA confirmed in her own evidence. 118 As we have noted, Mr CD's evidence was that Ms BA has expressed suicidal ideation if an abortion was not made available to her and Mr D's evidence included his concern that she may self-harm if she is denied an abortion. Ms BA expressed the same view in her initial evidence to us. 119 Obviously, all of the above must be understood within the context of Ms BA's fluctuating wishes. The above evidence reflects Ms BA's views and wishes at times when she wants to proceed with an abortion. In that regard, the explanations given for wanting to have an abortion that we have previously described - including that she never wanted to have a child and so on - are also relevant here. 120 Having said that, as we have noted, her wish for an abortion does appear to be her predominant desire and we therefore give those matters some weight. 121 Looking to the future, Dr PL's evidence was that, unfortunately, Ms BA is likely to be abusing drugs and suffering from psychosis into the future. 122 Although he was most reluctant to express any views about what was in Ms BA's best interests, Dr PL did express the view that, in effect, it would not be easy for Ms BA to raise a baby in those circumstances. 123 Mr CD said words to similar effect. He expressed the view that it was not in Ms BA's best interests to have a baby with 'all that is going on in her life'. We understood that to be a reference to what, from evidence given by Ms FD, appears to be an abusive relationship involving, at least, violence and drug abuse. 124 We note that in her later evidence Ms BA sought to explain or justify her desire to continue with her pregnancy by reference to getting married, living with her boyfriend and being a mum, saying that she could learn how to look after a child. -- 19 of 22 -- [2026] WASAT 99 Page 20 125 Given what we understand to be the circumstances of her relationship and her drug use, it may well be that any baby born to Ms BA (should an abortion not proceed) would be removed by child protection. It is not useful to speculate further as to what might happen in that regard but such a process is likely to add further trauma to Ms BA's life, although it may be that the removal of her baby might be a relief for Ms BA, particularly if her wish not to continue with the pregnancy continues to prevail as the dominant desire. 126 In any event, as we have said above, we give Mr CD's views as to Ms BA's best interests some considerable weight due to his relationship as Ms BA's father. In that regard, his evidence was that he visited her at RPH twice a week and that she often texted him ahead of time asking him to bring her items. In short, we are satisfied that their relationship is such that considerable weight should be accorded to his views. 127 Equally, we would give considerable weight to Ms FD's views as to what she considered to be in Ms BA's best interests but, while she said that she supported Ms BA's wishes, Ms FD did not to express an ultimate view one way or another as to whether an abortion was in Ms BA's best interests. 128 In his submissions as to Ms BA's best interests, Mr C acknowledged the chance that Ms BA may regret her decision to terminate her pregnancy but, equally, he acknowledged that regret may well work 'both ways'. We agree. It is impossible, and unhelpful, to speculate as to what Ms BA's views might be in the future and, either way, she may regret the course of action taken. 129 Also relevant to any consideration of Ms BA's best interests are the health risks associated with the performance of an abortion, including the risks of various medical complications. There are, of course, also risks associated with proceeding with the pregnancy to term and delivering a baby. 130 Ms BA's fluctuating wishes, and other uncertainties as to what might happen in the future are such that we consider it best to focus on Ms BA's current circumstances in weighing her best interests. 131 In short, she is suffering from psychosis which appears to have been at least somewhat resistant to treatment. She also appears to be in a violent and abusive relationship, which involves the abuse of drugs, and which she seems unable or unwilling to leave. -- 20 of 22 -- [2026] WASAT 99 Page 21 132 In those circumstances, we agree with Mr CD that it is not in her best interests for her pregnancy to continue. That is, continuing with her pregnancy in the current circumstances would significantly complicate an already complicated scenario and, indeed, may well add further trauma to what appears to be a traumatic situation. 133 Accordingly, we find that the performance of an abortion would be in Ms BA's best interests. Orders 134 For the reasons set out above, pursuant to s 110ZND, we consent to the performance of an abortion on Ms BA. 135 Pursuant to s 110ZLC of the GA Act, our decision 'has effect as if it were a treatment decision made by [Ms BA] in respect of the performance of [an] abortion on [Ms BA]' as if she 'were of full legal capacity.' 136 Of course, our decision does not compel an abortion to be performed on Ms BA; we merely consent to it occurring. 137 Dr P's evidence was that even if we consent to the performance of an abortion, she will not proceed with the procedure unless Ms BA expresses a positive desire to proceed at the time of, or just prior to, the performance of the abortion. 138 While that might be said to be a matter for Dr P and her colleagues at KEMH, we have considerable sympathy for the approach. To force someone to have an abortion against their immediately expressed wishes would be very challenging in a physical sense, undoubtably traumatic for all involved, and would appear to be inconsistent with basic notions of human dignity. 139 Accordingly, we consider it appropriate to impose a condition which would have that effect - that is, before any abortion is performed on Ms BA, she must express her own desire for that to occur. 140 We consider that appropriate because we consider it in Ms BA's best interests to retain as much bodily autonomy as is possible. 141 The foregoing highlights the very real difficulties thrown up by the statutory regime and the facts of this case. -- 21 of 22 -- [2026] WASAT 99 Page 22 142 As we have said, the evidence was that access a surgical abortion ends at 19 weeks and 6 days, which is only a week away (although a medical abortion would remain available for a further three weeks). It was also to the effect that the practical realities of KEMH's lists mean that the last possible date for a surgical abortion is, in fact, next Tuesday. To access that list requires Ms BA to present at KEMH on Monday and to maintain her consent to the surgical abortion over a period of a couple of days. 143 We finish by thanking all involved in this matter for their assistance. Everyone conducted themselves in an exemplary manner under very tight timeframes and otherwise difficult circumstances. We are very grateful for both their assistance and the manner in which they gave it. I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. DM Associate 21 AUGUST 2026 -- 22 of 22 --