Supreme Court Allows Medical Intervention Over Patient’s Refusal

The court found that the claimant, a young woman with an intellectual disability, lacked the capacity to understand the nature and effects of the proposed medical treatment and thus could not validly refuse it. The court allowed the medical intervention under its parens patriae jurisdiction.

Supreme Court New South Wales

Medium Neutral Citation: Application of [NAME]; Re a [NAME] [2016] NSWSC 624 Hearing dates: 13, 14 May 2016 Date of orders: 18 May 2016 Decision date: 14 May 2016 Jurisdiction: Equity - Duty List Before: Sackar J Decision: See paragraph 91 Catchwords: Parens patriae – Capacity to refuse medical treatment – Appeal from NCAT – Duress or undue influence in decision-making process Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW) Guardianship Regulation 2010 (NSW) Cases Cited: C v W [2015] NSWSC 1174 Department of Health and Community [COMPANY] v [NAME] (1992) 175 CLR 218 ([NAME]'s case) Director [NAME] Wales Department of Community [COMPANY] v Y [1999] NSWSC 644 Gardner; re [NAME] [2003] VSC 173 [NAME] England Area Health Service v A by his tutor T (2009) 74 NSWLR 88 Justins v R [2010] NSWCCA 242; 79 NSWLR 544; 204 A Crim R 315 Lloyd v Veterinary Surgeons Investigating Committee (2005) 65 NSWLR 245 Public Service Association and Professional Officers Association [NAME] v Secretary of the [NAME] [2014] NSWCA 112 R v Gyngall (1893) 2 QB 232 Re B (No 1) [2011] NSWSC 1075 Re [NAME] and [NAME] [2005] NSWSC 1207 Re JS [2014] NSWSC 302 Re T (Adult: Refusal of Treatment) [1993] Fam 95 S v S [2001] NSWSC 146 X v The Sydney Children's Hospitals Network [2013] NSWCA 320 Texts Cited: [NAME] and [NAME], Mental Capacity: Powers of Attorney and Advance Health Directives ([COMPANY] 2005) [NAME], Law and the Human Body: Property Rights, Ownership and Control ([NAME] 2007). Category: Principal judgment Parties: [NAME] (applicant) [NAME]: Counsel: [redacted] [NAME] ([NAME]) [NAME] (separate representative for [NAME])

[NAME], Lawyers (applicant) [NAME] ([NAME]) [NAME] (separate representative for [NAME]) File Number(s): 2016/147804

Judgment

Overview 1. [NAME] is 19 years old having been born on [DATE]. She identifies as Aboriginal. She has an intellectual disability. She was approximately 22 weeks pregnant and has a 4 year old son. She is a single mother.

2. Ordinarily she lives with her mother, step-father and son in country New South Wales.

3. She was admitted recently to a hospital in country New South Wales but was transferred to another hospital (the Hospital) on 6 April 2016 with placental haematoma and progressive renal failure. She was at the commencement of these proceedings in intensive care due to her pre-existing and progressive renal impairment. Her need for dialysis so far as her renal function was concerned was entirely related to her pregnancy. Her condition was deteriorating. Despite haemodialysis and multiple anti-hypertensive medications her blood pressure could not effectively be controlled.

4. The treating doctors were of the view that [NAME] was at a significant risk of permanent cerebral damage and possibly death if the pregnancy continued and had recommended it be terminated to allow more effective control of her blood pressure. It was accepted that if intervention occurred, although the foetus had been progressing relatively normally it would not survive at birth.

5. Despite the recommendation for intervention [NAME] refused to accept the advice and wished to continue with her pregnancy. Her mother supported her in this decision. She did however on 12 May 2016 sign a form of consent in the following terms: If I have a severe complication like an eclamptic seizure (fit), a cerebral haemorrhage (bleeding in the brain), a stroke, bleeding of the liver or my doctor considers that I am likely to die, then I consent to delivering of the baby even if that means the baby will not survive.

1. Her treating doctors notwithstanding the signed consent wished to intervene immediately rather than wait for the manifestation of any one of a number of nominated events.

2. The central question for determination in the proceedings was whether [NAME] had the requisite capacity to reject the recommendation that intervention occur immediately. If not, the question arose whether this court should allow intervention. A secondary question was whether the New South Wales Civil and Administrative Tribunal (NCAT) erred on 12 May 2016 in refusing to permit the doctors to immediately intervene.

Brief Procedural Background 1. Having conducted an urgent hearing on Saturday 14 May, I formed the view that [NAME] lacked the requisite capacity to understand and evaluate her condition and hence the recommendations made. I gave an ex tempore judgment late on the evening of 14 May 2016, when [NAME] condition worsened, allowing the intervention. I indicated I would publish my detailed reasons at a later time. I note that I made an order at the hearing of these proceedings that the identities of the Hospital and medical practitioners involved would not be identified but would be referred to by their specialities and accordingly in discussing their evidence below I have referred to them by their expertise.

2. I should observe in passing that in my view NCAT erred by presumably finding that [NAME] had the requisite capacity to refuse treatment. I say presumably because no reasons appear to have been given by NCAT but they rejected an application by the plaintiff for permission to intervene.

3. In proceedings in this Court by way of amended summons, declaratory relief was sought to the effect that [NAME] was incapable of understanding the [NAME] nature and effect of the proposed treatment and incapable of giving consent to the carrying out of the medical treatment.

4. The amended summons also sought an order that the applicant be given leave to appeal an order of NCAT of 12 May 2016 and that that order be quashed or set aside and/or another decision substituted for it.

5. A further declaration was sought pursuant to the Court's parens patriae jurisdiction so that the medical practitioners at the Hospital could lawfully carry out the medical treatment proposed in the application to NCAT. I effectively granted this order on Saturday evening.

6. On 10 May 2016 the plaintiff had initially sought an Application for Special Treatment from NCAT which would have permitted the relevant procedure to be undertaken. That application was dismissed on 12 May by NCAT.

7. NCAT had before it the Application together with supporting documentation which included amongst other things materials from the treating obstetrician and nephrologist and a report of a staff [NAME].

8. NCAT conducted a telephone conference on the evening of 11 May 2016 which involved the members of NCAT (comprising [NAME] and [NAME]) communicating with various persons at the Hospital including [NAME] and her mother, the treating obstetrician, the nephrologist and a hospital administrator. It appears that during the telephone conference the nephrologist informed NCAT that in his opinion it was highly likely that [NAME] condition would seriously deteriorate in the next 7 days and that it could deteriorate at any time. He also expressed the view that risks were increasing as time passed.

9. A member of NCAT decided to speak to [NAME] and had the following conversation with her over the telephone: Member: Do you understand the medical treatment that is being proposed? [NAME]: They want to take away my baby Member: Do you want that? [NAME]: No 1. Upon being asked further questions by NCAT, [NAME] handed the telephone back and started crying, after which point the telephone conference was terminated.

2. NCAT thereafter on 12 May 2016 dismissed the application and made orders accordingly. The effect of the decision is that NCAT did not consider [NAME] to be incapable of giving consent to the carrying out of the recommended medical treatment. For any number of reasons which I will later develop that decision was erroneous and manifestly so.

3. Application was formally made on Saturday at the commencement of these proceedings for leave pursuant to pt 6 and sch 6 of the Civil and Administrative Tribunal Act 2013 (NSW), in particular cl 14(3)(a) and (b), for an order that leave be granted to conduct a rehearing and call fresh evidence. Given that the evidence before the Court was to be amplified considerably, not only by written material but importantly a proposed hearing at the Hospital, I was of the view that the Court should deal with the Appeal by way of a new hearing and permit the reception of that fresh evidence.

Parens Patriae 1. The plaintiff seeks to invoke the Court's parens patriae jurisdiction.

2. It is appropriate that I observe that the parens patriae jurisdiction is ancient, wide-ranging and far-reaching. It extends as far as necessary for the protection of children and those persons who from their legal disability cannot look after themselves and are in need of protection: [NAME]'s Case (1992) 175 CLR 218, 258-9 (Mason CJ, Dawson, Toohey and Gaudron JJ) 278-80 (Brennan J). The jurisdiction requires and obliges the Court to act in the manner of a wise, affectionate and careful parent for the welfare of the person: R v Gyngall (1893) 2 QB 232 at 241 (Lord Esher MR); [NAME]'s Case at 280 (Brennan J).

3. The jurisdiction's focus is essentially protective in nature. In exercising the jurisdiction the Court's concern is predominantly the welfare of the person involved: Re [NAME] and [NAME] [2005] NSWSC 1207 at [17] per Young CJ in Eq.

4. The jurisdiction is not encumbered with technicalities. No jurisdictional limits have been described and, subject to the requisite nexus to the child or incapable person, it is seemingly unlimited. The situations in which the jurisdictions can be invoked are myriad. Whilst broad, it is generally to be exercised only in exceptional cases and with considerable caution. In the case of an adult, this caution is especially important because care should always be taken to ensure that there is no interference unlawfully in the free will of a capable individual.

5. As [NAME] pointed out in [NAME] England Area Health Service v A by his tutor T (2009) 74 NSWLR 88 at 90, [5], the common law recognises two relevant but in some cases conflicting interests – on the one hand a competent adult's right of autonomy or self-determination, and on the other hand the interest of the State in protecting and preserving the lives and health of its citizens. These views have been applied and approved: See Justins v R [2010] NSWCCA 242; 79 NSWLR 544 at 602-604; [357]-[360], Re JS [2014] NSWSC 302 at [6]-[9]. See also X v The Sydney Children's Hospitals Network [2013] NSWCA 320.

6. That conflict is of course a well-recognised phenomenon: Re T (Adult: Refusal of Treatment) [1993] Fam 95 at 112 per Lord Donaldson of [NAME]). As the Court of Appeal in that case made clear, even a decision by a capable adult lacking any apparent justification must be respected. Lord Donaldson remarked "the patient's right of choice exists whether the reasons for making that choice are rational, irrational, unknown or even non-existent" (at 113).

7. However as [NAME] also pointed out in [NAME] at [15], the lack of any discernible basis for a decision to refuse treatment may be something to take into account in assessing the competence of that decision.

8. Generally whenever there is a conflict between a capable adult's exercise of the right of self-determination and the State's interest in the preservation of life the right of the individual must prevail: [NAME] at [17].

9. Exceptions may however arise as Lord Donaldson points out in Re T (at 102) in a case where the choice may lead to the death of a viable foetus. If both mother and child can be saved against a mother's opposition the choice of intervention may be clear.

Relationship with Guardianship Act and NCAT 1. As noted by Lindsay J in C v W [2015] NSWSC 1174 at [90], the provisions of the Guardianship Act 1987 (NSW) are "purposive" and may be seen as a "statutory expression" of the Court's parens patriae jurisdiction. Those provisions however do not oust or displace the Court's inherent parens patriae jurisdiction(see e.g. S v S [2001] NSWSC 146 at [10]-[11]; Director [NAME] Wales Department of Community [COMPANY] v Y [1999] NSWSC 644 at [88]ff; c.f. Gardner; re [NAME] [2003] VSC 173 at [99]).

2. On the other hand, it is relevant that the Civil and Administrative Tribunal Act limits appeals to this Court from a decision (apart from an interlocutory decision) of the Guardianship Division of NCAT to questions of law or with the leave of the court "on any other grounds" (sch 6, cl 14(1)(b)). Pursuant to cl 14(3)(a) and (b), this Court can decide to deal with an appeal by way of a new hearing if warranted and permit fresh or evidence in addition or substitution for evidence received at first instance.

3. While a grant of leave to allow a merits review of an NCAT decision does not depend on there first being an appeal on a question of law (Lloyd v Veterinary Surgeons Investigating Committee (2005) 65 NSWLR 245 at 257, [61], per Tobias JA), as Lindsay J remarked in C v W at [44], if leave is to be granted pursuant to cl 14(1)(b) on a ground other than a question of law, "the Court generally needs to be satisfied that there is a question of principle or policy, or a manifest error in the decision-making process under review which merits a grant of leave".

4. Similarly, it has been said that the Court will not defeat the statutory scheme by simply invoking the parens patriae jurisdiction where a person is dissatisfied with a decision of NCAT except in exceptional cases: Re B (No 1) [2011] NSWSC 1075 at [59].

5. As I have previously indicated I granted (with no opposition) leave to appeal by way of rehearing and the reception of fresh evidence. There were a number of factors which in my view appropriately lead to a grant of leave. There was a good deal of fresh evidence because [NAME] condition was naturally being monitored and as it turned out was deteriorating. In such circumstances, I am also of the view that it would be appropriate for this Court to invoke its inherent parens patriae jurisdiction.

The Question of Capacity 1. This case as I have already said turns on whether [NAME] had the requisite capacity to exercise her undoubted right of self-determination. A relevantly capable individual can consent to any medical treatment rendering its administration lawful. Otherwise, the individual's right to bodily integrity is protected by torts law: See: [NAME], Law and the Human Body: Property Rights, Ownership and Control ([NAME] 2007).

2. An adult is presumed to have the capacity to consent to or refuse medical treatment unless or until that presumption is rebutted: [NAME] at [23].

3. As [NAME] observes in [NAME] at [24], there is a scale or spectrum of capacity. The nature of the decision and its importance are both highly relevant to any decision-making process and an assessment of capacity.

4. If a person is unable to comprehend and/or retain information which is material to the relevant decision, in particular the consequences of the decision, or the person is unable to use and weigh the information as part of the process of making the decision, then generally the person will be seen as incapable of exercising their right of self-determination. 5. [NAME] and [NAME] in their work Mental Capacity: Powers of Attorney and Advance Health Directives ([COMPANY] 2005 at 74 – 75) express the view that the capacity needed to refuse a particular treatment may well differ from that needed to consent to it. The authors suggest that this may be particularly so where refusal involves a high risk and a low benefit but the risks of treatment are low with a high probability of benefit. However in a complex case like the present the distinction may well be difficult to discern.

6. Notwithstanding that an adult appears to consent to a course the usual presumption can be rebutted if a decision has been obtained by duress or undue influence. There obviously may be other theoretical bases not relevant here which would vitiate an apparent consent: see [NAME] at [27]-[30].

7. Lord Donaldson in Re T (at 113E) discussed the question of influence of a third party upon a capable adult making a decision. His Lordship unsurprisingly envisaged that a person was entitled to receive advice and assistance from others in reaching a decision especially from family members. Even strong opinions that are designed to persuade a person to make a particular decision will not be objectionable "so long as it did not overbear the independence of the patient's decision" (Re T at 113F). Lord Donaldson expressed the view that the real question was whether in the circumstances the person meant what he said as opposed to saying something to satisfy or placate third parties such that the "decision" would be seen as one in form and not in reality.

8. His Lordship said (at 113 H): When considering the effect of outside influences two aspects can be of crucial importance. First, the strength of the will of the patient. One who is very tired, in pain or depressed will be much less able to resist having his will overborne than one who is rested, free from pain and cheerful. Second, the relationship of the "persuader" to the patient may be of crucial importance. The influence of parents on their children or of one spouse on the other can be, but is by no means necessarily, much stronger than would be the case in other relationships.

1. In the same case Butler-Sloss LJ who was of a similar view to Lord Donaldson acknowledged undue influence could be subtle, insidious and pervasive. Her Ladyship remarked that an influence could be most potent when exercised between close relatives especially where one may be in a dominant position vis-à-vis the other.

The Guardianship Act and NCAT 1. Counsel for the plaintiff referred me to the decision in [NAME] and also ss 32(2)(a) and 44 of the Guardianship Act and submitted that the test in the legislation was in substance the same as that articulated by [NAME] and the [NAME] law.

2. Counsel further accepted that "special treatment" within s 33(1) of the Act would be the only or most appropriate way of treating the patient and must be manifestly in the best interests of the patient (ss 45(3) and 44(2)). Guardianship Regulation 2010 (NSW) r 9 provides that special treatment for the purposes of s 33(1) includes "any treatment that is carried out for the purpose of terminating pregnancy".

3. It was submitted that NCAT got no further than understanding from [NAME] that she did not wish to have a termination of her pregnancy. It did not hear from her as to whether she really understood her condition and the consequences of refusing the treatment. It is also clear that NCAT either ignored or rejected the uncontroversial opinion of [NAME] that [NAME] did not understand her situation and this was against the background of a young woman who suffered with an intellectual disability and who was largely if not wholly dependent upon her mother.

4. It was submitted that NCAT simply failed to assess or address the dynamic of the relationship of mother and daughter. In particular, it was submitted that [NAME] was the interface between her and the medical practitioners and that the difficulties that this had caused were squarely addressed by [NAME].

5. The plaintiff submits both in [NAME] and in particular that all other relevant provisions of the Act applied to [NAME]. In determining that [NAME] was not a person to whom Part 5 of the Act applied pursuant to s 34(1)(b), NCAT fell into error. Her disability was such that it should have been found she was incapable of making the relevant decision pursuant to s 33(2)(a).

6. On the facts of this case neither counsel for [NAME] nor [NAME] separate representative could in fairness resist these propositions at least with any vigour.

The Evidence

[NAME] and her Mother 1. I convened a hearing at [NAME] bedside on Saturday morning 14 May 2016. She appeared as a young woman of slight build. She made very little, if any, contribution at any time to the proceedings. For much of the time she kept her eyes closed as if she was asleep. Clearly she was not, although I accept she was obviously significantly and unsurprisingly distressed. It was difficult if not impossible to induce her to speak. I arranged for this session, the concluding session and the session with medical practitioners to be recorded and audio files exist which set out what various people said. [NAME] did have a private discussion with her solicitor from [NAME] which is set out in greater detail later in this judgment. As a result of that evidence given by that solicitor and because it was felt [NAME] could not give adequate instructions I appointed the solicitor [NAME] and her counsel [NAME] separate representatives under s 45(4)(c) of the Civil and Administrative Tribunal Act (T2). 2. [NAME] was also unsurprisingly distressed but exceedingly voluble and it was obvious she held very strong views. The transcript of her contribution speaks for itself. She was vehemently opposed to any form of intervention except in what might be described as dire circumstances. At all times in the hearing she purported to speak on behalf of [NAME] indicating that [NAME] had strongly held views as well opposing intervention and that [NAME] understood all of the relevant risks that might manifest. I was never able to feel any degree of satisfaction that [NAME] held or could have come to such a view.

3. It is clear not only on the history obtained by the staff [NAME], whose evidence I shall come to shortly, but on my observations as well that [NAME] has played a very significant if not dominant role in [NAME] upbringing and ongoing care. [NAME] of counsel who appeared for [NAME] asked her a series of questions about her understanding of treatment options and risks. She affirmatively indicated that she understood them fully and they had been explained to [NAME]. She stated firmly that [NAME] realised the significance of stroke and death and she made references to members of her family who had suffered a stroke or death so as to indicate that [NAME] was prepared to accept those consequences as likely outcomes.

4. The manner and tone however in which [NAME] gave her evidence led me to have grave concerns that even she really understood the significance of the likely risks that might confront her daughter. She was concerned that [NAME] son not be disappointed in the apparent promise that his mother would be bringing a little brother home from hospital. She had, I consider, little if any insight into the possible consequence if [NAME] might suffer a stroke causing her some disability, physical or intellectual, and how that might impact on [NAME] ability to parent. Although I am sure [NAME] meant well and believed what she said was in [NAME] best interests, her somewhat domineering, overly protective attitude had the potential to obstruct medical practitioners from attempting to make an objective assessment of [NAME] capacity to understand the significance of her dilemma. 5. [NAME] lack of response and her unwillingness or inability to say anything at all at least during the hearing lead me to infer that she really did not understand the dilemma she faced. I have little doubt that she and her mother have discussed matters or rather more accurately her mother has spoken to [NAME] about these issues. I had grave doubts that [NAME] really had or had been perhaps allowed to have her own views on the matter. Indeed she and her mother signing a consent effectively indicating that [NAME] would only entertain intervention if dire consequences in fact occurred in all of the circumstances fortifies my view that [NAME] had no real ability to make a rational evaluation of the likelihood of risks.

6. One of the most insightful pieces of evidence in the case was the exchange between [NAME] and [NAME], solicitor. [NAME] had originally been retained to act on behalf of [NAME] and indicated after a conference with her that she was simply unable to obtain instructions and both she and [NAME] of counsel sought to be appointed separate representatives. I acceded to that request. Because in my mind it is a crucial insight into what I regard as [NAME] lack of understanding I set out in full from the transcript the evidence [NAME] gave: Q. [NAME], are you able to just go through now the conversation that you had with [NAME], doing your best to use the words used by each of you as the conversation progressed? A. Yes. I introduced myself to [NAME] as [NAME]. I explained to her that I was a lawyer, and that I had been asked to come and speak with her to try to understand what she wanted to have happen to her. I asked her if she knew where she was. She said yes, she was at the [redacted] Hospital. I asked her if she knew why she was at the hospital. She said: Yes, my kidneys. I asked her if she knew what was wrong with her kidneys. She said: There is a tear in my kidney. I asked her if there was anything else the doctors were worried about. She said: I don't know. I said: I know that you are pregnant. Do you know if the doctors are worried about your baby. She said: I don't know. I said: Do you know why the lawyers are here. She said: I don't know. I said: Do you know why the judge is here. She said: No. I explained to her that the Court was very worried that the right decisions were made for her, and that is why the lawyers and the judge had come to talk to her in hospital, to try to understand what she knew about what was happening for her. I asked her if she had heard any of the doctors say that she might have a stroke. She said: Yes. I said: Do you know what a stroke means. She said: Yes. I said: Can you tell me what a stroke means. She said: My aunty had one. I said: And what does that tell you about what a stroke means. She said: I don't know. I said: Do you know the doctors are worried that you might die. She said: Yes. I said: Do you know that the doctors are worried that you might bleed inside. She said: Yes. I said: And if these things happen, you might not be able to get better. Do you understand that. She said: Yes. I said: Now that I have explained that to you, can you now tell me what the doctors are worried about. She said she didn't know. She couldn't explain it to me. I said to her that if her baby was born today, it would not live. She said: Okay. I said: If you wait a few weeks, it might live, but no‑one is sure. She said: Okay. I said: Can you explain what I have just told you back to me. She said: No. I said: The doctors think that it is best that you don't keep your baby because if you do bad things might happen to your health and you can't get better. She said: Okay. I said: The doctors don't want you to keep your baby. Can you tell me what you think. She started to cry and asked for her mother to come in the room. I said to her that I could wait if she wanted to tell me. She continued to cry. I said: Do you want the chance to tell me what you want, or would you like me to leave. She said: I want my mother. I thanked her for her time and left. Q. Approximately how long did that conversation between you and [NAME] take? A. My best guess is about five minutes.

1. Many of the poignant answers in my view betray a real lack of understanding on [NAME] part as to the very difficult decision-making process which sadly confronted her. It also confirms the rather dominant position of her mother.

Medical Evidence

Overview 1. Leaving the psychiatric evidence to one side for one moment, the other evidence is that of obstetricians and nephrologists. This evidence was not controversial. 2. Each report in various ways portray a young woman who was in serious need of medical intervention in order to enable the control of her blood pressure so as to avoid one or other of the serious consequences outlined.

Obstetrician 1. The treating obstetrician is a [NAME] obstetrician employed at the Hospital. In the application to NCAT, the obstetrician expressed certain views having recounted a history which he had obtained directly or indirectly from [NAME] and others. He expressed the view that [NAME] suffered with reflux nephropathy with renal failure since "teenage years". He also expressed the view that she had renal failure with hypertension which had progressed over the last 4 weeks. He noted that she was then at 21 weeks gestation and was requiring haemodialysis six times a week as an inpatient. He noted that there was a large retroplacental haemorrhage which was stable. He also noted the foetus appeared to be growing normally.

2. The obstetrician noted that her hypertension was requiring six anti-hypertensive agents at "high dosage". She had required three admissions to ICU and on one occasion required intravenous medication to control her blood pressure.

3. He expressed concern in the application that she was at risk of eclamptic seizures, cerebral haemorrhage or stroke with the possibility of death if the pregnancy continued. He further expressed the view that for the foetus to survive it would have to reach a minimum of 24 weeks gestation and be appropriately grown. He expressed the view that continuing the treatment would likely be futile but would carry a risk to the mother of a serious permanent injury. He was also concerned that a continuation of the pregnancy would leave no further options of blood pressure control. He expressed the view that use of long term intravenous agents was not feasible and that in his view her clinical situation would rapidly become worse. A termination would arrest the process of pre-eclampsia over days. The option of a renal transplant would then have to be considered if she were to consider any future pregnancy.

4. In addition the obstetrician prepared a report of 13 May 2016. In that he noted that an obstetric ultrasound conducted on the day of his report showed that foetal growth had slowed at least over a one week interval. The umbilical arterial flow was still normal as was the amniotic fluid. The retro-placental haemorrhage was still stable.

5. In his report he expressed the view that the prospects of getting to viability (that is at least 24 weeks gestation) without serious health risks were very small.

6. During the hearing at the Hospital he reiterated these views.

Nephrologist 1. The nephrologist has worked at the Hospital for over 30 years. His PhD topic was pre-eclampsia and he has helped lead the medical treatment management of persons with this difficulty since the 1980s.

2. He indicated in his report which was undated (but was received after the NCAT hearing) and again orally before the Court that he had never clinically been in this situation before in that he had never had to prescribe so many hypertensives to a pregnant person. The usual course of action would be to deliver the baby before this type of treatment occurred. He corroborated the obstetrician's view that there were serious and real risks of complication and he set out the estimate of the likelihood of various complications as follows: Death 10% Fetal death 10-30% Worsening of kidney function 30% & need for permanent dialysis or transplant Severe ante partum haemorrhage 30% CVA/Cerebral haemorrhage 10% Acute pulmonary oedema 20% Liver dysfunction 80% Liver failure 5% 1. He expressed the view that some of these risks could occur at any time and some without warning as I understood him.

[NAME] 1. [NAME] is a staff [NAME]. She prepared a report dated 9 May 2016 which was available to NCAT. She saw [NAME] twice, once on 6 May and again on 9 May.

2. She was told about [NAME] intellectual disability by [NAME]. She was told [NAME] required special classes in years 7 and 8. She left school during her first pregnancy. [NAME] according to her mother has limited reading and writing abilities and is unable to manage her finances, hence her mother undertakes that function for her. She can apparently recite the months of the year, but she cannot identify the precise current month. [NAME] told [NAME] however that [NAME] was firmly and philosophically opposed to any termination. 3. [NAME] was given further history of the tragic death of [NAME] brother as a little boy and further that [NAME] son was expecting a baby brother to come home from hospital and that it would be difficult she thought for [NAME] to face him without a baby. 4. [NAME] recorded that she was unable to engage [NAME] in any discussion. [NAME] indicated that [NAME] was tired and wanted to sleep. [NAME] however persisted at which point [NAME] became tearful and the conference was terminated. 5. [NAME] returned on 9 May. [NAME] asked a series of questions which were generally responded to by one word answers as she described it. At times [NAME] answered for her. [NAME] formed the view that [NAME] was not able to demonstrate that she understood the medical condition and various treatment choices. [NAME] was also of the view that [NAME] was not able to weigh up the various choices. [NAME] stressed her uncertainty that [NAME] current apparent decision was indeed truly hers. [NAME] expressed the view that [NAME] did not have capacity to refuse or consent to a termination of pregnancy.

Maternal foetal medicine [NAME]

1. A staff [NAME] in maternal foetal medicine prepared a report dated 13 May 2016. [NAME] expressed the view that an ultrasound on 13 May showed growth restriction and minimal foetal growth. [NAME] further expressed the view that [NAME] had pre-eclampsia superimposed on chronic renal impairment and that her blood pressure was severe and placed her at a high risk of stroke. In addition, notwithstanding multiple medications, in [NAME]'s view her blood pressure remained "not well controlled" and was likely to worsen whilst she remained pregnant. [NAME] was of the view that if she were to have a stroke it may lead to death or severe long term disability. [NAME] also expressed the view that the foetus was not viable due to the period of gestation and size. In [NAME]'s view it was unlikely that it would reach a gestation and size that it would ever be viable due to growth restrictions. [NAME] further expressed the view that cessation of the pregnancy was likely to lead to significant improvement in [NAME] blood pressure and that intervention may well have the effect of saving [NAME] life.

Professor 1. A report dated 13 May 2016 was prepared by a Professor who is a nephrologist at another hospital. The Professor has practised obstetric medicine since 1987.

2. The Professor saw [NAME] and took a history from her to the effect that she progressed through primary school with learning difficulties and left in year 9. She had never worked. She told the Professor that the first pregnancy was traumatic as it had reportedly resulted from a rape.

3. The Professor identified the major risks to [NAME] as a very definite risk of stroke and/or seizures and less likely possible death. The episodes of raised blood pressure are in the range known to be associated with stroke. The Professor expressed the view that International guidelines recommended delivery should occur when it is not possible to control blood pressure with several oral anti-hypertensives. The Professor also expressed the view that it was unlikely the baby would survive to 24 weeks but would defer to the treating obstetrician. The Professor pressed the view that further episodes of severe hypertension are an indication for delivery on the grounds of maternal safety.

[NAME]

1. An additional practising [NAME] visited [NAME] and prepared a report dated 14 May 2016. During the consultation [NAME] gave him a history and made some comments which are recorded in his report. [NAME] attempted to rouse [NAME] but she kept her eyes tightly closed making a noise which indicated to [NAME] that she was annoyed. [NAME] observed that [NAME] answered questions which were in fact addressed to [NAME]. [NAME] asked [NAME] to step outside but she refused to leave. Some aspects of the encounter which are set out in his report of 14 May are disputed by [NAME]. It is unnecessary to resolve any of these disputes. [NAME] observed that [NAME] indicated on several occasions that she wanted to keep the baby and when asked questions about her health she burst into tears. [NAME] said he was unable to establish to his satisfaction [NAME] capacity to understand the effect and nature of the treatment and suggested a further examination without her mother present in an attempt to advance the matter.

Consideration 1. As I have said the medical evidence was uncontroversial. Her condition had deteriorated and had become extremely serious on Saturday evening 14 May notwithstanding additional intravenous antihypertensive medication at high dosage. All relevant specialists were gravely concerned that there was a real and significant risk of any number of untoward repercussions likely to occur if intervention was unduly delayed.

2. I decided having visited her late on Saturday evening it was appropriate I announce my decision ex tempore rather than wait until the following day.

3. I was satisfied on the evidence [NAME] did not adequately understand nor was capable of balancing or making an informed decision such as to permit her to refuse the treatment recommended.

4. At the earlier bedside hearing conducted on 14 May, she was in effect uncommunicative. Either she was unable or unwilling to engage in dialogue about the various recommendations made to her. I accept that she was clearly distressed and made even more distressed by these proceedings. That said it appeared to me that there was a serious limitation in her capacity to understand what had been put to her so as to resolve her dilemma.

5. On the basis of my observations, the report of the staff [NAME], and most importantly the discussion [NAME] had with [NAME], there was in my view more than ample material to rebut and displace the presumption which would normally be present.

6. The influence of her mother was a most significant factor. My very distinct impression was that her mother had run her life for a very long time because [NAME] was simply incapable of doing it herself. That is not a criticism of her mother, whose heart was and is unquestionably in the right place. As I have clearly said, in my view however [NAME] did not herself fully appreciate the significance of the risks faced by [NAME] and how that would play out if any occurred.

7. That other members of her family had experienced tragedy as a reason why [NAME] was able to digest and understand her particular dilemma was unconvincing. The suggestion that [NAME] would continue to face these risks because she did not want to disappoint her son in not bringing home a little brother was frankly unrealistic and if I may say so irrational in the scheme of things.

8. No one can fault a parent from being protective even perhaps overly protective. However in some circumstances, and this is but one example, over protection could have had dangerous consequences.

9. I was satisfied on the evidence in its totality that [NAME] did not in reality appreciate the true significance of the dilemma she faced. She neither had the strength nor the ability to contest the will of her mother who was well meaning, but frankly misguided.

10. These views caused me to allow intervention.

11. So far as the appeal from NCAT's dismissal of the application is concerned, on its face it seemed to me the decision of NCAT, unaccompanied by reasons, was at best cryptic and quite contrary to the medical evidence. It is fair to say in my view their attempt by telephone to understand, in a complex case, the position of [NAME] was wholly unsatisfactory. I appreciate time constraints and the like but this was a matter where the life of [NAME] or the quality of it was the subject of uncontroverted medical evidence. The principal question was whether [NAME] had capacity. The Tribunal's exchange via telephone did not in any adequate way explore that topic at all.

12. It was obviously accepted [NAME] could not continue with the telephone conference and it seems on an extraordinarily limited and ambiguous exchange NCAT concluded she had capacity to refuse treatment. This was against the staff [NAME]'s report to the contrary. Without reasons there is no discernible basis upon which [NAME] evidence given its content could have been determinative of the issue. Given the potential gravity of the consequences, NCAT's investigation was I consider somewhat regrettably superficial.

13. I do not know whether reasons were requested under s 62 of the Civil and Administrative Tribunal Act, but written reasons are generally to be given in matters such as the present case (sch 6, cl 11). NCAT was constituted by three members. The failure to give reasons would in my view itself be an error of law: Public Service Association and Professional Officers' Association [NAME] v Secretary of the [NAME] [2014] NSWCA 112 per Bergin CJ in Eq at [48]. I should add however this precise point was not taken.

14. In addition it seems to me even if the evidence stood as it did on 12 May 2016 NCAT view fell into error. There was objectively a serious absence of evidence to sustain their finding which underpinned their order dismissing the application. [NAME] could in reality not speak to her capacity. Indeed her mother's stance and attitude should have sounded a loud alarm. In my view there was no objective support for NCAT's finding [NAME] had the requisite capacity. The absence of reasons only serves to highlight in my view that NCAT's position was erroneous.

Conclusion 1. It is clear from the above that I should formally order the relief in paragraphs 2, 3, 4, 6, and 7. It seems to me there is no utility in making order 5 and I granted order 1 in the course of the proceedings.

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