Consent to special medical treatment and determining a patient's best interests - an overview of TI (Consent to Special Medical Treatment) [2023] TASCAT 105

• Author: Ms Rosie Blakey-Scholes and Cindy Tucker
• Law Firm: Kennedys
• Published date: 05 October 2023

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...