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This article was originally published in the Australian Health Law Bulletin edition 32.7 in July 2024.
Summary
In the case of C [2024] WASAT 50, the Western Australian State Administrative Tribunal (the Tribunal) addressed the intersection of Guardianship law and medical consent to performance of abortion. Specifically, the case considered the Tribunal’s powers to consent to the performance of a termination of pregnancy on a patient under current guardianship and administration orders pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act).
The key issue for the Tribunal to consider was whether Ms AB, the patient, was able to make reasonable judgments in respect of providing consent to a surgical termination of pregnancy. In short, the Tribunal was satisfied that Ms AB was able to make reasonable judgements in respect of whether or not the abortion should be performed and therefore the consent of the Tribunal was not required. The application was therefore dismissed.
Facts
The patient, Ms AB is a 34-year-old woman, who was almost 11 weeks pregnant at the time of hearing. Ms AB has a longstanding history of schizophrenia and since 2015, her condition had deteriorated with worsening symptoms requiring multiple hospital admissions. She also has a co-morbid diagnosis of polysubstance use disorder and the use of alcohol and methamphetamine complicated her delusions and hallucination symptoms.
In January 2024, Ms AB was a hospital inpatient receiving treatment for schizophrenia. Following the treatment, she was much improved and no longer required involuntary admission. She remained in hospital voluntarily and continued on her medication. The evidence indicated that, when not in hospital, Ms AB lived in her own home with the support of her mother, although that relationship was under strain at various times due to Ms AB’s mental illness.
In February 2024, Ms AB was found by the Tribunal to be incapable of exercising reasonable judgement in respect of matters relating to her own person and was found to be in need of oversight, care or control in the interests of her own health and safety. Under the GA Act, the public advocate was appointed as Ms AB’s limited guardian with the functions of making treatment decisions.
The applicant, Dr C, an obstetrician/gynaecologist, applied pursuant to s 110ZNB for an order to be made under s 110ZND of the GA Act for the Tribunal to give its consent to the performance of an abortion on Ms AB. Under the GA Act, a guardian, even with the function of making treatment decisions, is unable to give consent to the performance of an abortion on a represented person.[1] Moreover, it is a criminal offence for a health professional to perform an abortion for a patient who is over 18 but who is unable to make reasonable judgments about the procedure, unless the person has made an advance health directive about an abortion or the Tribunal has given its consent.[2] Dr C therefore sought the Tribunal’s consent.
Criteria and considerations of Tribunal
An important presumption applies that every person is presumed to be capable of making reasonable judgments in respect of matters relating to their person until the contrary is proved to the satisfaction of the Tribunal. A decision of the Tribunal in relation to the performance of an abortion on a person has effect as if it were a treatment decision made by the person as if they were of full legal capacity. In addition, the Tribunal must hold a hearing in relation to an application for consent to an abortion. [3]
The Tribunal may only give consent to the performance of an abortion on a person if a number of criteria are met.[4] The Tribunal must be satisfied that:
- the person has reached 18 years of age;
- the person is unable to make reasonable judgments in respect of whether or not the abortion should be performed on them;
- the person has not made an advance health directive containing a treatment decision that is inconsistent with the performance of the abortion on the person; and
- the performance of the abortion on the person is in the best interests of that person.
In deciding whether the performance of an abortion is in a person’s best interests, the Tribunal must take into account[5]:
- Whether the person is likely, within the foreseeable future, to regain the ability to make reasonable judgments in respect of whether or not the abortion should be performed on them; and
- Any wishes of the person, insofar as they can be obtained.
Ms AB had expressed her clear wishes to have an abortion.
Capacity
While Ms AB had been previously found by the Tribunal to lack the capacity to make reasonable judgment in respect of matters relating to her person, this was not directed to the specifics of particular decisions.[6] The Tribunal therefore found that the appointment of a guardian for medical treatment decisions did not preclude the Tribunal from finding that Ms AB was able to make a reasonable judgment about the decision to have an abortion.[7]
The Tribunal was required to analyse what is involved in the question of capacity to make a reasonable judgement regarding the decision to have an abortion and whether Ms AB was able to make judgments of that kind at the present time. Unlike some other jurisdictions, such as NSW[8], Queensland[9] and Victoria[10], the GA Act does not include a statutory definition of what it means to have capacity to make certain kinds of decisions. The Tribunal therefore considered common law authorities to provide some guidance as to what is required for a person to be able to give or refuse consent to medical treatment.
The Tribunal referred to Hunter and New England Area Health Service v A[11], where the Supreme Court of NSW outlined the presumption of capacity whereby an adult is presumed to have the capacity to consent to or to refuse medical treatment, unless and until that presumption is rebutted. The Court in Hunter encapsulated the scale of capacity and importance of the relevant decision, noting ‘there is no sharp dichotomy between capacity on one hand and want of capacity on the other. There is a scale, running from capacity at one end through reduced capacity to lack of capacity at the other. In assessing whether a person has capacity to make a decision, the sufficiency of the capacity must take into account the importance of the decision and the capacity require to make a contract to buy a cup of coffee may be present where the capacity to decide to give away one’s fortune is not’.[12] In Hunter, the ultimate question was whether the person suffers from an impairment or disturbance of mental functioning so as to render them incapable of making the decision, which will occur if they are unable to comprehend and retain the information material to the decision, in particular the consequences of the decision; and use and weigh the information as part of the process of making the decision.[13] It also noted that valid consent will be ineffective if it does not represent the independent exercise of the person’s own volition, or if there has been undue influence.[14] The Tribunal noted that it is necessary to take into account the importance of the decision and the ability of the individual to receive, retain and process information given to them that bears on the decision.
Similarly, the Tribunal noted that in in the UK case of Re T (Adult: Refusal of Treatment) [1992][15], Thorpe J observed that 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 effect of the proper treatment. Thorpe J in Re T, went on to identify the following aspects of the decision-making process that were required to be present for a person to have the capacity to make a decision about medical treatment: the person needs to be able to comprehend and retain treatment information, they need to believe that information and they need to be able to weight it in the balance to make a choice. [16] The Tribunal also noted the sentiments expressed by Campbell JA in Guthrie v Spence [2009] NSW 369,[17] that there is no single test for capacity to perform legally valid acts, and that one person could have capacity to perform one task, but lack capacity to perform a different task.
The Tribunal considered it necessary to consider the reasoning process or cognitive ability that a person is required to undertake in order to make a reasonable judgement regarding whether or not to have an abortion, the evidence as to Ms AB’s capacity in that respect and whether the evidence is sufficient to displace the presumption of capacity under the GA Act to make such a decision.[18]
Tribunal considerations
Medical evidence
The Tribunal sought reports from Ms AB’s treating doctors, including her psychiatrists and social workers at the hospital who had been involved in her treatment for schizophrenia or in discussions with her about the abortion procedure. Each practitioner attended the hearing and gave evidence.
The medical evidence was that the mental state of Ms AB had improved markedly over her admission in hospital, she was no longer experiencing hallucinations or delusions and had improvement in her cognitive abilities.[19] The evidence of the practitioners was that Ms AB had the ability to comprehend the information that she had received in relation to the decision, that she was likely to believe the information, understand it, had the ability to retain the information and to weigh up that information in order to make a reasonable judgment.[20] The doctors expressed the opinion that Ms AB’s wish to have an abortion was not influenced by her mental illness and that they did not attribute it to her impulsive decision-making tendencies. [21]
Further, the practitioners informed the Tribunal they saw no sign of any pressure on Ms AB to reach the decision to have an abortion. They considered that Ms AB was aware in her decision-making of the need to take into account her social situation and the supports that would be available to her in continuing with the pregnancy.[22]
Dr C was the gynaecologist and obstetrician with whom Ms AB had consulted about her desire to have an abortion, and would be responsible for the performance of the abortion if consent was given for the procedure to occur.[23] Dr C gave evidence that she had a discussion with AB, as she does with all pregnant women, to discuss her pregnancy options. Ms AB was clear that she wanted an abortion, was able to repeat back the risks of the procedure and her understanding of the consequences of signing the consent form for the procedure.[24]
Ms AB told Dr C that she wanted a surgical abortion rather than a medical abortion because she wanted to avoid the pain of the medical abortion. The Tribunal said that Ms AB’s thinking process suggested that Ms AB had an appreciation of what was involved in the procedure and the pros and cons of the different options available to her. Ms AB also requested that Dr C arrange a long-term effective contraceptive be made available to her.[25]
Ms AB’s social workers’ evidence was that they had discussions with her about her wish to have an abortion and each of them confirmed she received information about her options in relation to her pregnancy.[26] They stated that she expressed clearly her wish for an abortion, noting she had two abortions before, she recognised her limited supports, she reported a desire to have a baby only with a partner and her preference not to carry the pregnancy to full term. These reasons suggested to the Tribunal that Ms AB took a rational approach in deciding whether an abortion was the appropriate choice for her.[27]
Other evidence
The Tribunal also heard from Ms AB’s mother, Ms AB’s guardian and Ms AB who conveyed her wishes with ‘great clarity’.[28] Ms AB’s evidence and that of her practitioners was that she had consistently expressly the view that she wished to have an abortion. This was based on her desire to avoid having a pregnancy where she did not know who the baby’s father was and she did not wish to have a pregnancy without the support that she might require.[29]
Determination
The Tribunal was satisfied that it was more likely than not that Ms AB had the ability to comprehend the information given to her in relation to her pregnancy, her choices, including whether to have an abortion, the consequences of such a choice, and that she had weighed up information in order to make her choice.[30]
The Tribunal accepted the medical evidence of the doctors specialising in gynaecology/obstetrics and psychiatry, and the evidence of social workers in relation to their discussions with Ms AB. The Tribunal had particular regard to Ms AB’s own expression of her wishes, and considered this demonstrated an understanding of what would be involved in the abortion procedure and of the consequences of taking the pregnancy to term. [31] The Tribunal was satisfied that there was no evidence that Ms AB had been pressured into expressing her desire to have an abortion.[32]
The Tribunal was satisfied that Ms AB was able to make reasonable judgments in respect of whether or not the abortion should be performed. Therefore, the Tribunal’s consent was not required and the application was dismissed.[33]
Comparison of Guardianship laws and authority to consent
Guardianship laws and the authority to consent to medical procedures, including abortion, vary by state and territory in Australia. In most states, guardians have the authority to consent to medical procedures, but significant procedures, including abortions, often require approval from the relevant Tribunal. Decisions regarding abortions for those under guardianship are guided by the best interest principle, [34] to ensure the decision is in the patient’s best interests, balancing their health, wellbeing and autonomy.
For instance, in NSW the Guardianship Act 1987 defines termination of pregnancy as ‘special treatment’ which requires the consent of the Tribunal in order to proceed but only if the patient is over the age of 16 and is incapable of given consent to the carrying out of medical or dental treatment.[35] In the case of GKB [2020][36], the New South Wales Civil and Administrative Tribunal (NSWCAT) decided, similar to the Tribunal in this case, that GKB was not incapable of giving consent.
In Queensland, termination of pregnancy is defined in the Guardianship and Administration Act 2020 as ‘special health care’ and may only be dealt with by order of the Tribunal.[37] The Tribunal may provide consent for the procedure, but only if it is satisfied that the termination is necessary to preserve the represented person from serious danger to her life or physical and mental health.[38] The case of GRC [2016] QCAT 268[39] was markedly different because in that case, GRC did not want the abortion. The Tribunal was not satisfied that the termination was necessary to preserve her from serious danger to her life or physical or mental health so the application was therefore dismissed.[40]
Implications
In AB’s case, her wishes coincided with the application for consent to perform the termination of pregnancy. In light of the Tribunal’s decision that AB had capacity to make this decision, the decision was essentially uncontroversial. Unlike the case of GRC, who did not consent to the procedure, the Tribunal in C did not have to decide whether the procedure was necessary.
It is clear that, across Australian jurisdictions, effort has been made to exclude termination of pregnancy from routine medical decisions made by appointed guardians or medical treatment decisions-makers, presumably due to the irrevocable nature of the procedure. The legislation acts as a safe guard to ensure that terminations of pregnancy are not performed against the wishes of women who may not have capacity to make reasonable judgments about such a significant procedure.
[1] GA Act, s 110ZLA.
[2] GA Act, s 110ZLB.
[3] GA Act, s 110ZNC and s110ZND.
[4] GA Act, s 110ZND(1).
[5] GA Act, s 110ZND(2).
[6] C [2024] WASAT 50 at [37] (“C”).
[7] C, Above n 6 at [39].
[8] Guardianship Act 1987 (NSW), s 33(2).
[9] Guardianship and Administration Act 2000 (Qld), schedule 4.
[10] Guardianship and Administration Act 2019 (Vic), s 5.
[11]C, Above n at [41], referring to Hunter and New England Area Health Service v A [2009] NSWSC 761 at [25].
[12] C, Above n 6 at [35], referring to Hunter and New England Area Health Service v A [2009] NSWSC 761 at [25].
[13] C, Above n 6 at [41], referring to Hunter and New England Area Health Service v A [2009] NSWSC 761 at [25].
[14] C, Above n 6 at [41], referring to Hunter and New England Area Health Service v A [2009] NSWSC 761 at [25].
[15] Above n 6 at [42], referring to Re T (Adult: Refusal of Treatment) [1993] Fam 95 at [295].
[16] C, Above n 6 at [43].
[17] Guthrie v Spence [2009] NSWCA 369 at [175]; C, Above n 6 at [36].
[18] C, Above n 6 at [44].
[19] C, Above n 6 at [48].
[20] C, Above n 6 at [49].
[21] C, Above n 6 at [50].
[22] C, Above n 6 at [52].
[23] C, Above n 6 at [21].
[24] C, Above n 6 at [46].
[25] C, Above n 6 at [47].
[26] C, Above n 6 at [53].
[27] C, Above n 6 at [54].
[28] C, Above n 6 at [28] and [29].
[29] C, Above n 6 at [51].
[30] C Above n 6 at [56].
[31] C, Above n 6 at [55].
[32] C Above n 6 at [56].
[33] C Above n 6 at [59].
[34] Above n 6 at [18]; GA Act, s 4(2).
[35] Guardianship Act 1987 (NSW), s 42; Guardianship and Administration Act 2019 (Vic), s 140.
[36] GKB [2020] NSWCATGD 99 (13 May 2020) (“GKB”).
[37] Guardianship and Administration Act 2020 (QLD) s 71.
[38] Guardianship and Administration Act 2020 (QLD) s 71.
[39] GRC [2016] QCAT 268 (15 July 2016) (“GRC”).
[40] GRC, above n 40 at [33].
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