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  • Unreported Judgment

QDB

 

[2017] QCAT 280

CITATION:

QDB [2017] QCAT 280

PARTIES:

QDB

APPLICATION NUMBER:

GAA8503-17; GAA8615-17

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

17 August 2017

HEARD AT:

Brisbane

DECISION OF:

Member Browne, Presiding

A/Senior Member Guthrie

Dr Roylance, Member

DELIVERED ON:

18 August 2017 (delivered ex tempore)

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application for Consent to Special Health Care – Termination of pregnancy is refused.
  2. The Public Guardian is appointed as guardian for QDB for the following personal matters:
  1. (a)
    Health care; and
  2. (b)
    Legal matters not relating to the adult’s financial or property matters.
  1. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in six (6) months.
  2. The Tribunal directs that a transcript of the Tribunal’s reasons be prepared and placed on the file as a matter of urgency.

CATCHWORDS:

GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – OTHER MATTERS – where application for consent to special health care – termination of pregnancy – where the Public Guardian reported on the adult’s views, wishes and interests – whether the adult has capacity to make a decision about a special health care matter – whether termination of pregnancy is necessary to preserve the adult from serious danger to her life or physical or mental health

GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – APPOINTMENT – where application for the appointment of a guardian for personal matters – whether the adult has capacity to make decisions about complex personal matters – whether there is a need for decisions about personal matters

Guardianship and Administration Act 2000 (Qld), s 5, s 6, s 12, s 15, s 65, s 68, s 71, Schedule 1, Schedule 2, Schedule 4

Central Queensland Hospital and Health Service v Q [2016] QSC 89

GRC [2016] QCAT 268

R v Davidson [1969] VR 667

APPEARANCES:

 

APPLICANT:

Director of Medical Services, represented by Ms P Feeney of Counsel, instructed by legal represenatitves of the health facility

 

ADULT:

QDB represented by the Public Guardian

REASONS FOR DECISION

  1. [1]
    Member Browne: QDB is a 33-year-old woman with a history of mental illness and illicit substance abuse resulting in admissions to mental health units for treatment. QDB was incarcerated in the Brisbane Women’s Correctional Centre on the 7th of June 2017 for breach of bail conditions involving drug use. QDB is 20 weeks gestation into her current pregnancy with twins. She is currently an inpatient at the mental health unit at [a health facility[1]], having been transferred to the hospital due to relapse of her schizophrenia. QDB remains a classified patient and is under treatment authority pursuant to the Mental Health Act 2016 (Qld).
  2. [2]
    There are two applications before the Tribunal made under the Guardianship and Administration Act 2000 (Qld) herein referred to as the Act:
    1. An application for consent with special health care – termination of pregnancy. That application was made by the Director of Medical Services [of the health facility[2]]; and
    2. An application for the appointment of a guardian made by a social worker from [the health facility where QDB is currently residing[3]]. It is proposed that the Public Guardian be appointed as a guardian for QDB to make decisions about her healthcare and legal matters.
  3. [3]
    The applications proceeded to a hearing before the Tribunal on 17 August 2017. At the hearing, the Tribunal was satisfied that all active parties had filed all material to be relied upon and that QDB’s views and wishes were received and considered. The Tribunal was assisted at the hearing of this matter by legal counsel, Patricia Feeney, appearing for the applicants. Ms Feeney had prepared a detailed chronology of the medical and hospital records together with supporting affidavit material of health professionals in the area of obstetrics and gynaecology and psychiatry. We acknowledge the assistance given at the hearing by Ms Feeney and her instructing legal representative.
  4. [4]
    We acknowledge and thank the medical professionals who attended the hearing who were not only generous of their time but gave considered evidence about the medical issues arising in this matter.
  5. [5]
    We also acknowledge and thank the Public Guardian, QDB’s family, and others acting in a supportive and advisory role who attended at the hearing in person and by telephone and video conference facility.
  6. [6]
    Prior to the hearing, Ms Feeney made an application for a closure order under s 107 of the Act and a non-publication order under s 108 of the Act. The application for a closure order was subsequently withdrawn by Ms Feeney.
  7. [7]
    At the hearing, the Tribunal was satisfied that a non-publication order was necessary in this matter given the unique circumstances of QDB’s matter, that is, the type of pregnancy and the number of weeks gestation together with mental health issues could lead to the identification of QDB if the names of medical practitioners and health facility staff from the facility where QDB is being treated were identified.
  8. [8]
    At the hearing, the Tribunal made the following order:
    1. The Tribunal prohibits the publication of the name of the adult and the names of all medical practitioners from the health facility where the adult is receiving treatment and any other person whose identity if disclosed would identify the adult.
  9. [9]
    Turning now to the application for special health care – termination of pregnancy [emphasis added]. Under s 65 of the Act, the Tribunal can deal with the special health care matter, that is, as defined a termination of pregnancy. Under s 68, the Tribunal may by order consent to a special health care for an adult. It may only give such consent as provided if certain requirements are met.
  10. [10]
    For the purposes of s 71, the Tribunal must be satisfied that the adult has impaired capacity for the matter, that is, capacity as defined under schedule 4 of the Act, amongst others to understand the nature and effect of the decision to terminate the pregnancy.
  11. [11]
    The Tribunal must be satisfied that the termination of pregnancy is necessary to preserve QDB from serious danger to her life or physical or mental health. Section 71(2) also provides that termination of an adult’s pregnancy to which the Tribunal has considered for the adult is not unlawful. In GRC [2016] QCAT 268, the Tribunal observed that for the purposes of s 71 of the Act there must be evidence that the termination of pregnancy is necessary in order to avoid serious danger to the adult’s life or physical or mental health if the pregnancy was to continue and therefore consent to a termination of pregnancy should be given.
  12. [12]
    In GRCs case, the Tribunal determined that the words “serious danger” for the purposes of s 71 should be interpreted in a way that will best achieve the purposes of the Act, that is, to strike an appropriate balance between the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision-making and the adult’s right to adequate and appropriate support for decision-making. The Tribunal must make the least restrictive order and recognise that an adult has the right to the same basic human rights regardless of a particular adult’s capacity and must be recognised and taken into account.
  13. [13]
    In GRC’s case, the Tribunal determined that the words “serious danger” in s 71 require something more than mere risk or concern identified, for example, by a health professional when considering the adult’s physical or mental health if the pregnancy was to continue or if the termination of pregnancy was to be performed.
  14. [14]
    In GRC’s case, the Tribunal relied upon the decision in Central Queensland Hospital and Health Service v Q [2016] QSC 89 and the reasoning in R v Davidson (1969) VR 85. Davidson’s case said that in effect for the termination to be lawful for the purposes of the Criminal Code, termination must be necessary to preserve the woman from a serious danger to her life or her physical or mental health, not being merely the normal dangers of pregnancy and childbirth which the continuation of the pregnancy would entail and in the circumstances not out of proportion to the danger to be averted. That’s at [672].
  15. [15]
    We agree with the observations and findings by the Tribunal in GRC’s case.
  16. [16]
    The issues to be considered in determining whether consent should be given for the termination of pregnancy are:
    1. Firstly, whether QDB has capacity to make a decision about the termination of pregnancy; and
    2. Secondly, whether there is evidence before the Tribunal that the termination is necessary to preserve QDB from serious danger to her life or physical or mental health.
  17. [17]
    In relation to the application for the appointment of a guardian [emphasis added], the Tribunal has the power to appoint by order a guardian to make decisions about QDB’s personal matters. The Tribunal may only make such an order if it is satisfied that the requirements set out under s 12 are met. The issues to be determined by the Tribunal in relation to the application for the appointment of a guardian are:
    1. Firstly, whether QDB has the capacity to make decisions about her personal matters; and
    2. Whether there is a need for a decision to be made about her personal matters or she is likely to do something in relation to the matter that involves or is likely to involve unreasonable risk to her health, welfare or property and without an appointment her needs will not be adequately met or her interests will not be adequately protected.
  18. [18]
    At the hearing, the Tribunal firstly considered the issue of capacity [emphasis added], that is, as defined under schedule 4 of the Act, in particular, the issue of whether QDB has the capacity to make the termination of pregnancy decision and the issue of whether QDB has the capacity to make decisions about her personal matters. The Tribunal is satisfied that the presumption of capacity has been rebutted and makes the following findings of fact.
  19. [19]
    We accept the medical evidence of Dr MA, consultant psychiatrist, who has been treating QDB [at the health facility[4]]. Dr MA’s evidence is that QDB lacks the capacity to make decisions. In relation to the decision to terminate her pregnancy, Dr MA said that QDB gives no reasons why she wants the termination and does not understand the nature and effect of the decision.
  20. [20]
    In relation to QDB’s capacity to make decisions about her personal matters, Dr MA said that although there has been improvement in her capacity he did not consider QDB would be capable of making complex decisions. In particular, she does not understand the nature and effect of complex personal decisions. Dr MA said that there was a chance QDB’s capacity will improve in the next month or so but did not consider that she would have the capacity to make a decision about where she should live, referring to such a decision as requiring a higher level of capacity. Dr MA’s evidence effectively remained unchanged when addressing questions about QDB’s capacity to make decisions about her service matters, healthcare matters and legal matters. Dr MA’s evidence is that QDB cannot make complex decisions and even though QDB is medicated she has no greater capacity for complex matters.
  21. [21]
    Dr MA’s opinion is consistent with the opinions expressed by other treating medical professionals. The opinions of other psychiatry professionals identify similar concerns about QDB’s capacity to make decisions as does the opinions of other obstetricians and health professionals. The medical and hospital records before us demonstrate a history of mental illness including schizophrenia and delusional behaviour and drug use. The medical and hospital records also demonstrate a history of seeking medical attention in moments of crisis and QDB will take medication during periods of involuntary treatment orders or authorities and even during those periods has at times ceased taking medication and disengaging from services.
  22. [22]
    The Tribunal finds that QDB has a diagnosed mental illness and history of drug use that impacts on her ability to make complex decisions. We are satisfied that QDB does not have the capacity to make the decision to terminate her pregnancy. We also find that QDB does not have the capacity to make complex decisions about all of her personal matters due to her diagnosed mental illness. The presumption of capacity for the purposes of s 12 and s 71 of the Act is rebutted.
  23. [23]
    Turning now to the application for consent for the special health matter – termination of pregnancy [emphasis added]. We firstly have considered QDB’s views and wishes in relation to the termination. The Public Guardian in its role as separate representative consistent with the views expressed directly by QDB to us at the hearing is that QDB wants the termination. QDB says that she does not want any more children. QDB’s parents have also indicated that they do not oppose the approval of the termination procedure predominantly on the basis that they do not think she is capable of looking after children.
  24. [24]
    We recognise that QDB’s views and wishes should be taken into consideration in this matter. We are also mindful, however, of the fact that QDB has not been fully informed about the termination procedure. The medical evidence before us is that because the termination will take place after 20 weeks gestation the foetuses may be born alive. It will also be necessary for the registration of a death certificate and arrangements made for a burial. QDB has not been informed about this and has not been given an opportunity to consider whether she would like to continue with the pregnancy and how she feels about the termination procedure.
  25. [25]
    The Tribunal has also considered the various entries made by health professionals at the health facility that record entries of QDB’s views about the pregnancy. It is open for us to find that QDB’s views about the pregnancy are equivocal. QDB has on occasion been recorded to be ambivalent about the pregnancy. The Tribunal was also informed at the hearing by Dr MA that QDB has reported that she would be accepting of the decision if the Tribunal did not consent to a termination.
  26. [26]
    We have considered all of the material including the oral evidence given by various medical professionals at the hearing. We are not satisfied that the requirements under s 71 of the Act have been met. More importantly, that there is not evidence before us of serious danger to QDB’s life or physical or mental health if the pregnancy was to continue and therefore consent to termination of pregnancy cannot be given.
  27. [27]
    There is evidence before us from medical professionals with obstetric expertise. Both doctors agree that QDB’s pregnancy is a higher risk than a normal pregnancy for a number of reasons: by the nature of the pregnancy, being a “MCDA” twin pregnancy; and in regard to some other specific personal health issues inherent to QDB. QDB has a history of drug use, is Hepatitis C positive, has a low-lying placenta and is a moderate to heavy smoker. Both doctors agree that if QDB’s pregnancy continued, it required a greater degree of care and management and without the continued care and more importantly, if QDB withdrew from care, there is, in effect, an increased risk that changes will occur and QDB’s physical health will be at risk. The evidence is that in a worst case scenario, if there was a change to the foetuses left undetected, for example, intrauterine foetal death, QDB was at risk of developing a complication that, if left untreated, could result in her death.
  28. [28]
    We accept that QDB’s pregnancy is a higher risk pregnancy than a standard or normal pregnancy. It is open for us to find, based on the evidence before us, that the obstetric doctors’ view is premised upon the comorbidity of the psychosocial and mental health issues being present and unremediated. There is evidence before us from QDB’s treating psychiatrist that her mental health issues are at present being managed. QDB is also receiving all of the care she requires as an inpatient [in the health facility[5]].
  29. [29]
    In relation to the evidence about QDB’s mental health and whether there is evidence of serious danger to her mental health if the pregnancy were to continue, we prefer the opinion of Dr MA to the opinion of other psychiatry professionals. Dr MA has been treating QDB at the health facility.
  30. [30]
    Dr MA’s evidence is that there is improvement in QDB’s mental health and at this point, as the pregnancy progresses and QDB is improving with treatment, he cannot say there is a serious danger to her mental health up to the end date of her pregnancy.
  31. [31]
    Dr MA’s evidence is that it is not clear whether or not QDB will develop significant postnatal depression. Dr MA’s evidence effectively remained unchanged when he was questioned about the termination procedure and the likely impact that may have on QDB’s mental health. Dr MA’s evidence is that QDB’s illness is improving with treatment and follow up and stressors can be managed. Dr MA did not consider that QDB was at risk of significant self-harm in response to another opinion expressed about concerns of self-harm if the pregnancy were to continue. We accept Dr MA’s evidence. We are also not satisfied, having considered the views of other interested parties at the hearing, that QDB has engaged in self-harm during this pregnancy.
  32. [32]
    It is open to us to find, based on the evidence before us, that any high risk to QDB’s physical health if the pregnancy were to continue is speculative because it requires a number of things to occur which do not amount to serious danger. The high risk to QDB’s physical health is premised on several factors that, although carry a degree of risk as we have found in this high-risk pregnancy, requires QDB to disengage from services and supports and/or to develop one of the complications of pregnancy that have been outlined.
  33. [33]
    As we have said, these risks are in themselves speculative, and the physical risks alone are the normal dangers of this type of pregnancy and childbirth. We have found that QDB’s mental health has improved. We cannot be satisfied that the termination is necessary and, in the circumstances, consistent with Davidson’s case, ‘would be out of proportion to the danger to be averted’ [emphasis added].
  34. [34]
    It is open for us to find, based on the evidence before us, that the threshold of serious danger as required under s 71 of the Act has not been met. We are not satisfied for the purposes of s 71 that there is evidence before us of serious danger to QDB’s life or physical or mental health if the pregnancy was to continue. The application for the special health care consent – termination of pregnancy is refused.
  35. [35]
    Turning to the application for the appointment of a guardian. We are satisfied that the requirements of s 12 have been met. We have found that QDB does not have the capacity to make decisions about her personal matters and that the presumption of capacity for complex personal matters is rebutted. All present at the hearing agreed that there is a need for decisions to be made about QDB’s health care and legal matters. The Tribunal makes the following findings of fact.
  36. [36]
    QDB has a history of mental illness, drug use, and a high-risk pregnancy. QDB requires ongoing psychiatric and professional health care to manage her mental illness, health care needs, including her pregnancy. The health care decisions are complex. QDB has outstanding criminal matters that may require legal representation through the Queensland Criminal Courts. Decisions need to be made about QDB’s health care and legal matters. The Tribunal is satisfied that, without the appointment of a guardian, QDB’s needs will not be adequately met or her interests will not be adequately protected.
  37. [37]
    In relation to the proposed appointee, the Public Guardian, the Tribunal has applied the s 15 appropriateness considerations and makes the following findings of fact.
  38. [38]
    The Public Guardian is suitable and appropriate as the guardian of last resort and is suitable and appropriate because it is independent and will apply the general principles that include maintaining QDB’s existing supportive relationships. All present support the appointment of the Public Guardian as a guardian for QDB.
  39. [39]
    The Tribunal has considered the medical evidence about QDB’s mental health and more recently the opinion of Dr MA, who reports an improvement in some areas, together with proposed strategies to manage and support QDB’s mental health issues in her present circumstances. The Tribunal is satisfied that a review of the appointment of a guardian in six months is the least restrictive order.
  40. [40]
    So the orders will be:
    1. The application for consent to special health care – termination is refused. 
    2. The Public Guardian is appointed as a guardian for QDB for the following personal matters: health care and legal matters not relating to the adult’s financial or property matters. This appointment of the Public Guardian remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in six months; and
    3. The Tribunal directs that a transcript of the Tribunal’s reasons be prepared and placed on the file as a matter of urgency.

Thank you.

Footnotes

[1] Reasons are de-identified pursuant to the Order of the Tribunal dated 17 August 2017.

[2] Reasons are de-identified pursuant to the Order of the Tribunal dated 17 August 2017.

[3] Ibid.

[4] Reasons are de-identified pursuant to the Order of the Tribunal dated 17 August 2017.

[5] Reasons are de-identified pursuant to the Order of the Tribunal dated 17 August 2017.

Close

Editorial Notes

  • Published Case Name:

    QDB

  • Shortened Case Name:

    QDB

  • MNC:

    [2017] QCAT 280

  • Court:

    QCAT

  • Judge(s):

    Member Browne, Presiding

  • Date:

    18 Aug 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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