Chapter 15 – Sterilisation

Contributed by Nick O’Neill with input from Carmelle Peisah, current to 30 April 2021.

15.1 Introduction

The sterilisation of children and adults with decision-making disabilities, usually justified by a decision-making disability, has been, and remains, a controversial matter. For a period it was justified on eugenics arguments. What controversy that remains in Australia is centred on whether sterilisation is a matter of last resort or a matter of the best interests of the, usually young woman, with decision-making disabilities.

In Australia, sterilising treatment of people with decision-making disabilities, must be approved by a tribunal or a court and according to differing statutory or common law tests. Whether a tribunal or a court is the decision-maker depends in significant part on which State or Territory the tribunal or court is in as well as on the age of the person for whom the substitute consent is sought.

This chapter contains a brief discussion of the development of the law relevant to sterilisation. It sets out the law currently used by tribunals or courts when deciding whether or not to approve sterilisations of people unable to give a valid consent to their own treatment as well as the legal tests they use for that purpose.

15.2 Sterilisation as a societal issue in the 19^th and 20^th centuries

By the end of the 19^th century a theory of eugenics had been derived from the work of scientists like Charles Darwin and Gregory Mendal. Under that theory, the complex traits in human beings were seen as hereditary and, like with plants and animals, could be selectively bred in or out. Scientific and popular literature of the time attempted to document the hereditary factors in pauperism and crime. Reports written in the early 20^th century asserted such things as “Every feeble-minded person, especially the high-grade imbecile, is a potential criminal needing only the proper environment and opportunity for the development and expression of his criminal tendencies” and “All feeble-minded lack self-control….Their moral tendencies and lack of self-control make the birth-rate among them unusually high”.(1) As Kittrie noted:

Sterilisation seemed a simple and long-range answer to the dangers posed by feebleminded and other defectives. By not allowing the defectives to renew themselves, society would soon be rid of them.(2)

In 1907 Indiana was the first US State to enact legislation authorising sterilisation. In 1924 Virginia made a law which provided that whenever the superintendents of certain State institutions were of the opinion that it was for the best interest of the patients of that institution and of society generally “that an inmate should be sexually sterilized”, the superintendent could arrange for the operation performed upon “any patient afflicted with hereditary forms of insanity, imbecility, etc., on complying with the very careful provisions by which the act protects the patients from possible abuse”.(3) The Virginia law was tested in the US Supreme Court in 1927. The facts of the case were, paraphrasing the words of Holmes J, who gave the decision of the Court, as follows. Carrie Buck was a feeble-minded white woman who was committed to the State Colony [a Virginia State institution]... She was the daughter of a feeble-minded mother in the same institution, and the mother of an illegitimate feeble-minded child. At the time of the trial of her case in the Circuit Court in the latter part of 1924, she was eighteen years old.(4)

Giving the decision of the Court soon after World War I and with the American Civil War not far in the past, Holmes J said:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.(5)

After that decision a further 20 States enacted sterilisation legislation. In all 31 US states enacted such legislation.

An article in the March 1934 part of the American Journal of Public Health noted that on 1 January 1934, Germany began to put in force a program to sterilize those of her citizens legally adjudged unfit for parenthood and that a government announcement had stated that approximately some 400,000 people were to be sterilized in a short time.(6) Using the euphemisms of the time, those who were “hereditarily sick” were to be made “unfruitful” (sterilised) through surgical intervention when, “following the experience of medical science, it may be expected with great probability that their offspring may suffer severe physical or mental inherited damages”. The hereditarily sick, were defined in the law as those who suffered from one of the following conditions: “inborn feeblemindedness, schizophrenia, circular insanity, hereditary epilepsy, hereditary Huntington's chorea, hereditary blindness, hereditary deafness, severe hereditary physical deformity”. Further, those who suffered from severe alcoholism could be made “unfruitful”.(7) Applications were to be made to Hereditary Health Courts, 1700 of which were to be established around the country. The article also noted that:

If the objective of eliminating parenthood by those unfit is actually achieved in a thorough but legally and scientifically fair way, Germany will be the first modern nation to have reached a goal toward which other nations are just looking, or approaching at a snail's pace. What will actually happens remains to be seen.

What was seen was the death of millions of Jews as well as many gypsies, homosexuals, people with intellectual disabilities and the political opponents of the Nazis. Goldhar reports that “In 1939 'euthanasia' was given to 70,000 mentally ill and disabled Germans”.(8)

Goldhar also notes that there was a long history of sterilisation legislation in Canada, especially in Alberta and British Columbia.(9) Goldhar suggests that while there was a decline in the movement for eugenic sterilisation because of the German experience:

Sterilization reappeared in the USA in the 1960s under another guise. It became a punishment for illegitimacy, poor parenting and fiscal irresponsibility. If federal funds were used to pay for sterilizations, consent was required. This pre-condition was ignored in the sterilization of some thousands of native American women.(10)

Kittrie noted that the US sterilisation legislation was “typically true to the eugenic arguments” and made applicable to three classes of individuals; “the mentally ill, the mentally deficient and the epileptic”. He also noted in his book published in 1971 that “[t]his pattern is still carried today in most sterilization statutes”.(11) However by 1982 Sparks J giving the judgment of the California Court of Appeal noted:

Over half a century ago it was believed that sterilization of the unfit would promote the general health and welfare of our society. In recent times, there has been a growing realization that sterilization procedures may be greatly abused. Although Buck v. Bell has not been explicitly overruled, we agree with the assessment of the Colorado Supreme Court that “[t]oday, compulsory sterilization of incompetents based on eugenic theories can no longer be justified as a valid exercise of governmental authority....” Courts now recognize that the constitutional rights at stake, a woman's right to freedom from unwarranted governmental intrusion and to choose whether to bear children, are of a fundamental nature.(12)

As Goldhar points out, even though the issue was discussed in journals and the press and debated in the parliaments, no legislation was enacted in either England or Australia. Nevertheless, sterilisations took place in both countries both before World War II and after, most likely without the consent of the women involved. The arguments given to justify them were summarised by Goldhar as follows:

In Australia, as in other countries, sterilizations on women with an intellectual disability were rationalised on the basis that the operation was in their best interests. The woman would not have to be informed about menstruation. She would not have to experience the discomfort and inconvenience of monthly periods. There would be no danger of pregnancy with all its attendant pain and trauma; no need for abortions; no wasting time and energy on sex education.(13)

From the late 1970s the concept of normalisation was beginning to develop along with a realisation that people with an intellectual disability “should be able to enjoy the same rights and privileges as other members of society and be able to maximise the enjoyment of rights, while simultaneously balancing their freedom against their vulnerability”.(14) Nevertheless, Golhar reported that sterilisations continued and that girls were required to have sterilisations as a pre-condition to staying in institutions or living in home-type accommodation.(15)

He also claimed that:

The reason why sterilizations have continued is simple. Hysterectomies, tubal ligations and, to a much lesser extent, vasectomies, have been used as an alternative to education and independence training by parents unable to come to terms with their children's sexuality.(16)

In their book, “Mental Retardation” published in 1982, Hayes and Hayes noted that research showed sterilisations were carried out on women with an intellectual disability in New South Wales in the 1970s. They expressed the view that “there is no reason to believe that sterilisation is an unlawful operation in Australia” setting out their reasons for it.(17) They also noted that sterilisation as a medical procedure occupied a special position in that it was rarely lifesaving or performed under emergency conditions. Instead it was an elective procedure which was to all intents and purposes irreversible.(18) They then went on to categorise the justifications advanced for the sterilisation of people with an intellectual disability under the following headings, and to show the defects of those justifications:

1. Benefits to society and the State
2. Benefits to the person with the intellectual disability
3. Benefits to future generations.(19)

After further consideration of the research and debate concerning sterilisation and of some of the cases, Hayes and Hayes, who were then academics at two different universities in Sydney, went on to state:

Legislators, courts and experts in mental retardation appear to be heading in the direction of making sterilisation pursuant to consent by parents or guardians more difficult to obtain. Nearly 90 per cent of the mentally retarded population is moderately to mildly retarded and therefore potentially capable of giving informed consent. Sterilisation of severely or profoundly patients is often unnecessary because physical of genetic abnormalities render them incapable of intercourse or procreation and most live in protected environments where sexual intercourse is unlikely. Therefore the number of patients needing to be sterilised and lacking the ability to consent is extremely small. Hygienic “reasons” for sterilisation appear to reflect the medical professions inadequate knowledge of training in social and self-help skills for retarded people, as well as general coyness about menstruation. No reasonable practitioner would undertake an operation for colostomy because the patient smeared faeces around the house – why is the smearing of menstrual blood considered so much more abhorrent and untreatable by education, conditioning and behaviour modification techniques? The application of the principle of least restrictive alternative seems tragically ignored in the area of sterilisation.(20)

15.3 The enactment of legislation to protect incapable people from unnecessary sterilisations in Australia

The observations of Hayes and Hayes about direction of the debate and of policy development were proven right fairly quickly when in 1985 the South Australian parliament amended the Mental Health Act 1977 (SA) to make it clear that where a person had a mental illness or a “mental handicap” their parents could not consent to a sterilisation procedure on their behalf. An application had to be made to the then South Australian Guardianship Board which could consent to the carrying out of the procedure only if it was “therapeutically necessary” or if it wasn’t therapeutically necessary, the Board was satisfied that:

1. there was no likelihood of the person acquiring the capacity to give an effective consent at any time,
2. the person was physically capable of procreation,
3. the person was, or was likely to be, sexually active, and there was no method of contraception that could, in all the circumstances, reasonably be expected to be successfully applied or
4. the cessation of the woman’s menstrual cycle would be in her best interests and would be the only reasonably practicable way of dealing with the social, sanitary or other problems associated with her menstruation.(21)

In addition the Board had to have no knowledge of any refusal on the part of the person to consent to the carrying out of the sterilisation, being a refusal that was made by the person while capable of giving effective consent and that refusal was communicated by the person to a doctor.(22)

In his second reading speech introducing the amendments, the Minister for Health quoted from the Second Bright Report on the Law and Persons with Handicaps as follows:

Sterilisation, both of children and adults, certainly appears to have occurred without a clear knowledge of the law relating to sterilisation, which casts doubt on the right of a parent or caregiver to consent to non-therapeutic sterilisations on behalf of another. And it seems clear that such action is often taken to relieve parents or caregivers of concern for the future, rather than for the benefit of the person involved.(23)

The Minister then on to describe the legislation and the requirements that had to be met before the then South Australian Guardianship Board could give its consent to the carrying out of a sterilisation procedure.(24)

Hayes and Hayes’ observations were further proved in November 1987 when the then Minister for Youth and Community Services in New South Wales, John Aquilina, introduced the bill for what is now called the Guardianship Act 1987 (NSW) into Parliament and said in his second reading speech:

Special medical treatment is defined in clause 33 as being "any medical treatment that is intended, or is reasonably likely to have the effect of rendering permanently infertile the person on whom it is carried out, or any other medical treatment that is declared by the regulations". The principal purpose of this definition is to make it unlawful to carry out sterilization, except in a case where it is necessary to save the life of the patient or to prevent serious damage to the patient's health, or unless the Guardianship Board has held a hearing concerning the matter and has given its consent. There have been allegations over a number of years that intellectually disabled people in particular have been improperly sterilized as a means of social control and this practice was condemned by the Anti-Discrimination Board in a report which it produced in 1981. There would be few people in a civilized community who would condone such a thing and it is a principal purpose of this bill to outlaw the practice.(25)

The relevant provisions of the Guardianship Act 1987 (NSW) did not come into force until 21 August 1989.(26) However, in 1988 the Family Court dealt with two cases involving sterilisation for non-therapeutic reasons. In November 1988 Cook J refused to grant an injunction to stop the sterilisation of a 15 year old girl who had not yet begun to menstruate. He held that the decision about the operation was not one for the Court. There was nothing exceptional “about this case which warrants the Court interfering with or usurping the parents’ right to decide that a hysterectomy on their child should be carried out”.(27) The next month Nicholson CJ refused a similar injunction. However, he held that the Family Court had parens patriae jurisdiction to grant or refuse consent to sterilisations of children and that parental consent was insufficient. He held that the test was that the child’s welfare was the paramount consideration.(28)

15.4 The High Court’s authorisation of the Family Court

In 1992 the High Court dealt with a sterilisation case from the Northern Territory (Marion’s Case).(29) The majority held that the Family Court and not child’s parents or guardians could authorise the sterilisation of a child. In dissent Brennan J was of the opinion that the power to authorise the sterilisation of a child with an intellectually disability extended to therapeutic sterilisations, “and no further”.(30) The majority did not want to use the terms “therapeutic” and “non-therapeutic” because of their uncertainty. They noted that sterilisation required major surgery that was invasive and irreversible. They considered that court authorisation was required in order to ensure the best protection of the interests of the child and because of the significant risk of the wrong decision being made about the child’s present or future capacity to consent and because of the grave consequences of a wrong decision. The majority judges then expanded on the factors that could contribute of a wrong decision being made.(31)

After noting that the welfare jurisdiction conferred on the Family Court was similar to the parens patriae jurisdiction (of Supreme Courts), the majority went on to describe what was involved in the Family Court authorising sterilisation and set out how best interests of the of the person for whom the sterilising operation was proposed were confined by the notion of the operation being a step of last resort. They said:

The function of a court when asked to authorise sterilisation is to decide whether, in the circumstances of the case, that is in the best interests of the child. We have already said that it is not possible to formulate a rule which will identify cases where sterilisation is in his or her best interests. But it should be emphasised that the issue is not at large. Sterilisation is a step of last resort. And that, in itself, identifies the issue as one within narrow confines.

In the context of medical management, "step of last resort" is a convenient way of saying that alternative and less invasive procedures have all failed or that it is certain that no other procedure or treatment will work... The objective to be secured by sterilisation is the welfare of the disabled child. Within that context, it is apparent that sterilisation can only be authorised in the case of a child so disabled that other procedures or treatments are or have proved inadequate, in the sense that they have failed or will not alleviate the situation so that the child can lead a life in keeping with his or her needs and capacities.

It is true that the phrase "best interests of the child" is imprecise, but no more so than the "welfare of the child" and many other concepts with which courts must grapple. As we have shown, it is confined by the notion of "step of last resort", so that, for example, in the case of a young woman, regard will necessarily be had to the various measures now available for menstrual management and the prevention of pregnancy…. And, if authorisation is given, it will not be on account of the convenience of sterilisation as a contraceptive measure, but because it is necessary to enable her to lead a life in keeping with her needs and capacities. With the range of expertise available to them, judges will develop guidelines to give further content to the phrase "best interests of the child" in responding to the situations with which they will have to deal.(32)

In Re Marion (No 2), decided days before the High Court gave its decision in Marion’s Case, Nicholson CJ set down what he considered to be the relevant factors in that case to determine whether the proposed hysterectomy was in the best interests of the child. These were:

1. the particular condition of the child which required the procedure or treatment,
2. the nature of the procedure or treatment proposed,
3. the reasons for which it is proposed that the procedure or treatment be carried out,
4. the alternative courses of treatment that are available in relation to that condition,
5. the desirability of and effect of authorising the procedure or treatment proposed rather than the available alternatives,
6. the physical effects on the child and the psychological and social implications for the child of authorising, or not authorising, the proposed procedure or treatment,
7. the nature and degree of any risk to the child of authorising, or not authorising, the proposed procedure or treatment, and
8. the views (if any) expressed by the child, their guardian, the person entitled to their custody and the person responsible for their daily care and control about the proposed procedure or treatment and to any alternative procedure or treatment.(33)

Nicholson CJ’s approach has been applied in sterilisation of children cases in the Family Court and is useful for any court or tribunal which has to deal with sterilisation cases under a “best interests” test.(34)

In P v P(35) decided in 1994, the High Court held that the marriage, divorce and matrimonial causes powers in the Constitution were wide enough to allow the Commonwealth Parliament to legislate for the authorisation of medical treatment for an incapable child of a marriage.(36) The effect of the case was that while it confirmed the welfare jurisdiction of the Family Court as corresponding with the traditional parens patriae jurisdiction of the Supreme Courts, there was no indication that State law had been fettered; consequently State legislation, insofar as it related to the sterilisation of incapable children, continued in operation.

15.5 Who may consent to sterilising treatments for incapable people in Australia?

15.5.1 State and ACT tribunals

Each of the States and both Territories have empowered a tribunal to act as the consent authority for sterilising operations adults, and in some cases also children, who cannot give a valid consent to such an operation.

The role of each of these tribunals is discussed below at 15.6.

15.5.2 State and Territory Supreme Courts

All Australian State and Territory Supreme Courts have, as part of their inherent jurisdiction, parens patriae jurisdiction to authorise sterilising treatment for incapable children or adults.(37) While their jurisdiction in relation to this matter may not have been removed either by express words or necessary implication in legislation giving this jurisdiction to tribunals, they may prefer to adopt an approach like that taken by Morris J of the Supreme Court of Victoria in relation to guardianship and administration matters and consider that they do not have a current role in exercising their jurisdiction preferring to deal with sterilisation matters on appeal, by way of judicial review or by filling gaps that the legislation does not cover.(38)

15.5.3 Family Court

The Family Court has jurisdiction to deal with applications in relation to a child of a marriage before they reach 18 years of age as part of its welfare or parens patriae jurisdiction. This was settled by the High Court’s decision in P v P.(39) The Family Court’s jurisdiction may be exercised regardless of whether the State or Territory has given its own courts or tribunals jurisdiction to deal with applications in relation to the same children.

It is as yet undecided whether the Family Court’s jurisdiction applies to children who are not children of a marriage. However, it is unlikely that the Court’s jurisdiction would extend that far. Comments on the extent of the marriage power made by Brennan J in his dissenting judgment in P v P indicate this.(40)

It is also undecided, and similarly unlikely, that such jurisdiction will be held to apply to adults who are incapable of giving a valid consent to their own treatment. In both cases the connexion between the person the application is about and the “marriage” and “divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants” powers of the Commonwealth Parliament set out in the Constitution is tenuous at best.(41)

In a 1995 case, decided after P v P and after the then NSW Guardianship Tribunal had refused consent to the proposed treatment, the Family Court allowed a hysterectomy to proceed on an incapable young woman who was about to turn 18. It was clear from his judgment that Chisholm J considered that the Family Court’s jurisdiction ended at 18 years for a child of a marriage and that the treatment approved should take place before the young woman’s 18^th birthday.(42)

15.6 The jurisdiction of State and Australian Capital Territory tribunals in relation to the sterilisation of people unable to give a valid consent to their own treatment

The tribunals are dealt with in the order in which they were given jurisdiction. South Australia is dealt with first because its original Guardianship Board was given jurisdiction to consent to sterilisations by 1985 amendments to the Mental Health Act 1977 (SA). New South Wales, the Australian Capital Territory, Western Australia, Tasmania, Victoria and Queensland follow in that order.

Occasionally tribunals exercising guardianship jurisdiction give guardians the function (authority) to consent to medical treatment for the person for whom they are guardian in circumstances in which this will involve making decisions on reproductive and sexual health for women with impaired decision-making capacity for such matters.(43) While this function or authority can involve the guardian in very difficult decision-making, it does not include decisions which will or are likely to have the effect of rendering the person permanently infertile dealt with in this chapter.

15.6.1 South Australia

As noted above, South Australia was the first Australian State to enact legislation to clarify who may consent to sterilising treatment. The Guardianship and Administration Act 1993 (SA) provides that, except where emergency medical treatment is necessary, it is only the South Australian Civil and Administrative Tribunal (SACAT) that may consent to sterilising treatments.(44) However, SACAT cannot consent to a sterilisation unless it is satisfied as to one of three different reasons. The first is that it is therapeutically necessary for the sterilisation to be carried out on the person. It is assumed that SACAT’s consent is required only if the person cannot give a valid consent to their own treatment because of mental incapacity as defined in the Guardianship and Administration Act 1993 (SA).(45)That assumption it is based on the fact that SACAT has to be satisfied before it may consent to a (non-therapeutic) sterilisation that there is no likelihood of the person acquiring, at any time, the capacity to give an effective consent to the proposed sterilisation.(46)

The second and third reasons allow for non-therapeutic sterilisations in limited circumstances. Before it may give its consent for a sterilisation based on either of those reasons, the Board must be satisfied that:

1. the person was physically capable of procreation, that is had begun to menstruate and was otherwise physically capable of having children and had not ceased to be fertile or had otherwise become incapable of having children,
2. there was no likelihood of the person ever having the capacity to give a valid consent to the treatment, and
3. there was no evidence that the person, if they previously had had capacity, had during that time refused consent to the carrying out of the sterilisation and had communicated that refusal to a doctor.

If the Board is satisfied that the person is, or is likely to be, sexually active, and there is no method of contraception that could, in all the circumstances, reasonably be expected to be successfully applied to the person, then the Board may consent to the sterilisation. The third reason relates only to women and requires the Board to be satisfied that cessation of her menstrual cycle would be in her best interests and would be the only reasonably practicable way of dealing with the social, sanitary or other problems associated with her menstruation.(47)

15.6.2 New South Wales

In New South Wales, NCAT and its predecessor tribunals, the Guardianship Board and the Guardianship Tribunal, have had jurisdiction, under the Guardianship Act 1987 (NSW), to determine whether or not to consent to the giving of sterilising treatment to persons 16 years and older since before the High Court decided Marion’s Case.(48) NCAT deals with a number of applications each year. The Mental Health Review Tribunal also has jurisdiction under the Mental Health Act 2007 (NSW) to consent to sterilising treatment, but only on an involuntary patient detained a mental health facility and only on the application of the medical superintendent or a doctor attached to that facility nominated by the medical superintendent.(49)

Sterilising treatment means any treatment that is intended, or is reasonably likely, to have the effect of rendering the person on whom it is carried out permanently infertile.(50) Except in relation to involuntary patients detained in a mental health facility, the Guardianship Act 1987 (NSW) makes NCAT the only consent authority for this form of “special medical treatment”.(51) However, NCAT must not give its consent unless it is satisfied that:

1. the person is incapable of giving consent to the medical procedure proposed;(52)
2. the treatment is the most appropriate form of treatment for promoting and maintaining the patient’s health and well-being, and
3. the treatment is necessary to save the patient’s life or to prevent serious damage to the patient’s health.(53)

Where the Mental Health Review Tribunal is the consent authority, it must be satisfied that the sterilising treatment is necessary to prevent serious damage to the health of the involuntary detainee.(54)

Since July 2001, the Guardianship Tribunal, and now NCAT, has also had jurisdiction to deal with applications for consent to the carrying out of sterilisations on children up to the age of 16 years.(55) In this context sterilisations are any medical treatment that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the child on whom it is carried out. However, treatments that are intended to remediate a life-threatening condition or treatments from which permanent infertility, or the likelihood of permanent infertility, is an unwanted consequence, for example treatment for some kinds of cancer, can be carried out with relevant consents and no involvement of NCAT.(56)

Before it may give its consent to the carrying out of the treatment, NCAT must be satisfied that it is necessary to carry out the treatment on the child in order to save the child’s life or to prevent serious damage to the child’s psychological or physical health.(57) This test means that only therapeutic sterilisations may be carried out on children up to 16 years of age. The requirement that the treatment be the most appropriate form of treatment for promoting and maintaining the patient’s health and well-being that applies to those 16 and above who are incapable of giving a valid consent to their own treatment has been omitted from the test in relation to children.

A selection of the New South Wales cases dealing with applications for consent to the sterilisation of children and incapable adults are set out in 15.7, below.

15.6.3 Australian Capital Territory

In the Australian Capital Territory, if a person, 18 years or above, is not competent to give consent to the treatment and is not likely to become competent in the foreseeable future, the ACT Civil and Administrative Tribunal (ACAT) must give its consent before a medical treatment that meets the description of reproductive sterilisation or hysterectomy may be carried out on them.(58) However, before ACAT may do this it must first appoint a guardian for the person and make a declaration that the person is not competent to give a valid consent for the proposed reproductive sterilisation or hysterectomy.(59)

ACAT may then, at the hearing of an application of which the person under guardianship, their guardian and any other person whom ACAT considers should have notice, consent to the proposed reproductive sterilisation or hysterectomy for the person under guardianship if it is satisfied that:

1. the procedure is otherwise lawful; and
2. the procedure would be in the person’s best interests.(60)

When it is deciding whether a reproductive sterilisation or hysterectomy would be in the person’s best interests, the matters ACAT must take into account include:

1. the wishes of the person, so far as they can be ascertained,
2. what would happen if the treatment was not carried out,
3. what alternative treatments are available, and
4. whether the treatment can be postponed because better treatments may become available.(61)

The relevant part of the judgment of the majority of the High Court in Marion’s Case dealing with best interests as confined by the notion sterilisation being a step of last resort is set out in 15.4 above while “best interests” in the context of sterilisation is further discussed in 15.7 below.

15.6.4 Western Australia

The sterilisation provisions of the Guardianship and Administration Act 1990 (WA) came into force in 20 October 1992. They have been amended since. Like the provisions in the Australian Capital Territory, they require the person for whom the sterilisation is proposed first to be the subject of a guardianship order.(62) This means that the State Administrative Tribunal (WASAT) has already made a formal finding that the person is incapable of looking after his own health and safety or is unable to make reasonable judgments in respect of matters relating to their person or is in need of oversight, care or control in the interests of their own health and safety or for the protection of others, and is in need of a guardian.(63)It also means that this jurisdiction of WASAT applies only to those who are 18 years and above.(64)

WASAT may then consent to the sterilisation of such a person but only if it is satisfied that the sterilisation is in the best interests of the person for whom it is proposed.(65) Since 30 September 2008, it has been a requirement that a Full Tribunal of WASAT make such decisions.(66) The guardian must then give their consent before the proposed sterilisation may be carried out.(67)

Sterilisation is not defined in the Act, but it must be intended to cover a number of procedures because the term “procedure for the sterilization” is defined so as not to include a lawful procedure carried out for a lawful purpose other than sterilisation but that incidentally results or may result in sterilisation.(68)

Only the person for whom consent to a procedure for sterilisation is sought, their guardian or the Public Advocate may apply to WASAT; however the two of these who are not the applicant together with the person’s nearest relative and anyone else who the executive officer of WASAT considers has a sufficient to the application will be given notice of the hearing.(69)

If both consents to the sterilising treatment are given, all rights of appeal in relation to them have to have lapsed or been exhausted before the sterilisation may proceed.(70)

A selection of Western Australian cases dealing with applications for consent to the sterilisation of incapable adults is set out in below in 15.7.

15.6.5 Tasmania

The Guardianship and Administration Act 1995 (Tas) appears to assume the common law position that courts or tribunals must give consent to sterilising treatments and not parents.(71) Following the New South Wales definition, it describes sterilisation as, “any treatment that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out” and makes it a special treatment.(72) The Tasmanian Guardianship and Administration Board’s jurisdiction to deal with applications to consent to special treatment may be implied from the Guardianship and Administration Act 1995 (Tas).(73) Also, while the Board’s guardianship jurisdiction commences at 18 years, it also exercises sterilisation jurisdiction in relation to children.(74)

That Act sets out the criteria that the Board must apply when deciding whether or not to give its consent to a special treatment. There are no separate criteria that apply only to special treatments. The three criteria which the Board must be satisfied about before it may give its consent to proposed treatment are that:

1. the treatment is otherwise lawful,
2. person is incapable of giving consent, and
3. the treatment would be in the best interests of that person.(75)

In deciding whether the proposed treatment would be in the best interests of a person, the Board must take into account the following matters:

1. the wishes of the person the application is about, so far as they can be ascertained,
2. the consequences to that person if the proposed treatment is not carried out,
3. any alternative treatment available to that person,
4. whether the proposed treatment can be postponed on the ground that better treatment may become available, and
5. whether that person is likely to become capable of consenting to the treatment.(76)

Also when dealing with these applications, the Board must observe the principles in the Act.(77) The Board is of the view that it must be satisfied “upon convincing evidence that the procedure is justified” before it may consent to a special treatment.(78)

A Tasmanian case dealing with applications for consent to the sterilisation of a 14 year old girl, incapable of giving consent to her own treatment, is set out in 15.7, below.

15.6.6 Victoria

In Victoria sterilisation is one of the "special medical procedures" that only the Victorian Civil and Administrative Tribunal (VCAT) may give its consent to. (79) Appointed or authorised medical treatment decision makers cannot give consent to these treatments. In Victoria sterilisation is defined the same way as it is in New South Wales namely as, "any procedure that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out". (80)

15.6.6.1 Matters VCAT must be satisfied about before it may consent to a special medical procedure including sterilisation

Since the coming into force of theMedical Treatment Planning and Decisions Act 2016(Vic) on 12 March 2011, the criteria that VCAT has to be satisfied about before it may consent to the carrying out of a special medical procedure, including sterilisation treatment, have been varied a bit as a result of the 2016 Act and its introduction of statutory advance care directives which may include intentional or values directives, or both.(81) As a result, VCAT may consent to the carrying out of a special medical procedure only if it is satisfied that: 1. the patient (the person the treatment is proposed for) has not given an instructional directive in relation to the special medical procedure, and (82) 2. the patient is incapable of giving consent, and 3. the patient is not likely to be capable, within a reasonable time, of giving consent, and 4. if the patient has given a values directive, that the carrying out of the special medical procedure would not be inconsistent with that directive, and (83) the special medical procedure would align with the patient’s preferences or values or it will promote the personal and social wellbeing of the patient. (84)

It should be noted that VCAT may consent to the carrying out of sterilising treatment that qualifies as a special medical procedure only if it is satisfied that the patient (the person the treatment is proposed for) has not made an instructional directive in relation to the special medical procedure refusing consent to that procedure. However VCAT may, on application or of its own motion in any hearing before it, revoke, vary or suspend such an instructional directive, as it is part of an advance care directive.(85) If VCAT has not neutralized the effect of any such instructional directive, it would then have to dismiss the application, as it has no jurisdiction to consent once it is aware that the patient has made such an instructional directive. This is the effect of s. 42E(aa) of theGuardianship and Administration Act1986(Vic).

If the instructional directive in the patient's advance care directive "purported" to consent to sterilising treatment that qualifies as a special medical procedure then it will be treated as a values directive and VCAT can proceed to give consent if it is satisfied that the carrying out of the special medical procedure would not be inconsistent with that directive. (86) However, VCAT would be able to consent to the procedure proposed only if it was satisfied that the patient was incapable of giving consent, (87) that the patient was not likely to be capable within a reasonable time, (88), the likely effects and consequences of the procedure and whether these are consistent with the patient’s preferences or values (89) or the special medical procedure will promote the personal and social wellbeing of the patient. (90)

For more on advance care directives in Victoria in general, see Chapter 12.6 and Chapter 13.5.2.1.

15.6.6.2 Who may bring an application to VCAT?

Applications to VCAT for it to consent to the carrying out of a sterilising treatment may be made, first by the medical treatment decision maker of the person the sterilising treatment is proposed for (the patient) or second by any person who, in the opinion of VCAT, has a special interest in the affairs of the patient.(91) In Victoria a number of people have the potential to be the medical treatment decision maker for the person who lacks the decision-making capacity to make the decision whether or not to consent to sterilising treatment for an incapable person in Victoria is described at Chapter 12.6.5.3.

However determining who that person is for the purpose of accepting them as entitled to make an application for sterilising treatment is quite complex. It is unlikely that the person for whom the sterilising treatment is proposed would have the capacity to appoint a medical treatment decision maker, let alone to have actually done so. A person who has the decision-making capacity to appoint a medical treatment decision maker, is also likely to have sufficient decision-making capacity to consent to, or refuse consent to sterilising treatment, and consequently not a person within the jurisdiction of VCAT in relation to sterilising treatment.(92)

It may be that the person the sterilising treatment is proposed for has a VCAT appointed guardian, either a private person or the Public Advocate, who, if they had powers in relation to the patient’s health care, could make the application. It seems inappropriate to use the hierarchy of potential authorised medical treatment decision makers set out in s. 55(3) of the Medical Treatment Planning and Decisions Act2016(Vic) as potential applicants. Their statutory role is to consent (or refuse consent) to medical treatment, as widely defined, and not to apply to others to make the treatment decision. If s. 42B(1) of the Guardianship and Administration Act1986(Vic) is read as giving VCAT a choice to accept an application from a person it considers has a special interest in the affairs of the person the sterilising treatment is proposed for, without first having exhausted the list of potential authorised medical treatment decision makers, then not only spouses, domestic partners and primary carers could be seen as potential applicants but also health professionals including the doctor proposing to provide the sterilising treatment.

15.6.6.3 Parties to the application

The incapable person is an automatic party to the proceedings, but VCAT must give notice of the application and of the hearing to the Public Advocate; and any other person whom VCAT considers has a special interest in the affairs of the person the proposed treatment is for.(93)

15.6.6.4 VCAT’s special medical procedures in action

In 2015, ZEH was a 25-year-old woman with a mild to moderate intellectual disability. She lived with her parents and attended a supported workplace for part of the week. However, she was also an accomplished athlete, who competed successfully in her sport. Her parents applied to VCAT for consent for a tubal ligation for her as a form of permanent contraception.(94)

There was no contradictor to this application as such proceedings are usually not adversarial in nature. ZEH was not separately legally represented; but VCAT’s usual procedure when dealing with an application for consent to a special procedure (now called a special medical procedure) is to have the Public Advocate to investigate and to carry out the role of independent advocate for the person the subject of the application. A representative of the Public Advocate prepared and filed a report with VCAT.

On the basis of the expert evidence, VCAT was satisfied that ZEH lacked capacity to consent to the tubal ligation at the time of the hearing and that it was unlikely that she would gain the capacity to consent to the procedure within a reasonable time. (95)

ZEH’s parents and her sister agreed that the tubal ligation was the only way to ensure that ZEH would not become pregnant. They also felt strongly that the procedure would be in ZEH’s best interests. ZEH was clear that her parents wanted her to have an “operation” to prevent pregnancy. She also stated that she was not able to look after a child and that she could not look after herself.

The evidence also showed that ZEH reliably took the contraceptive pill prescribed for her and was willing to continue to do so.

There was evidence that ZEH’s choice for contraception was the contraceptive pill. But there was also expert evidence that ZEH’s reasoning and processing skills necessary to understand the relevant information and implications, to provide informed consent, to make informed life choices or to meaningfully communicate her wishes on issues other than those related to basic (non-abstract) daily activities were limited.(96)

VCAT formed the view that, in a general sense, ZEH’s views were consistently expressed; that she enjoyed or at least had no objection to or concern about taking the pill, she did not have a wish to have a baby, and appeared unconcerned one way or the other about the proposed operation.(97)

VCAT went on to consider other required criteria and then came to the question of whether the proposed special procedure was the least restrictive option. (98) This led VCAT to consider Marion's Case and to note the view of the majority that: "Sterilisation is a step of last resort. And that, in itself, identifies the issue as one within narrow confines". (99) VCAT also noted the often referred to views of Brennan J in dissent in that case; particularly his statements:

1. Our law admits of no discrimination against the weak and disadvantaged in their human dignity. Intellectual disability justifies no impairment of human dignity, no invasion of the right to personal integrity.(100)
2. Sterilization of an intellectually disabled child requires justification of a compelling kind, for involuntary sterilization is a serious invasion of that child's personal integrity and a grave impairment of that child's human dignity.(101)

As commented by VCAT, Marion’s Case, though about children not adults with cognitive impairment, set out some profoundly important principles which are applicable to decisions about the sterilisation of adults with cognitive impairment.(102)

VCAT then proceeded on the basis that it was bound to act compatibly with human rights as set out in the Charter of Human Rights and Responsibilities Act (Vic) 2006. VCAT took the view that the rights engaged by the application were:

1. the right to recognition and equality before the law, and
2. the right to protection from treatment without full, free and informed consent.

VCAT went on to note that ZEH has not experienced a sexual relationship and that it was not clear whether this was because she was not interested in having a sexual relationship or because her parents are very protective of her and so ensure that the opportunity does not arise because they are so fearful of the consequences. But then continued: “ZEH has the right to be treated equally before the law, as has every 25 year old woman. She has the right to protection from treatment without her consent”.(103)

VCAT then took into account the International Convention on the Rights of Persons with Disabilities (the CRPD), under which Australia has accepted, as a matter of international law, obligations under the CRPD to recognise the rights of people with disabilities. VCAT referred to CRPD’s objective to:

promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.

And went on to refer to Article 17 which provides that every person with a disability has a right to respect for his or her physical and mental integrity on an equal basis with others. And also to Article 23(1) (c) which states:

Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others, so as to ensure that:

(c) Persons with disabilities, including children, retain their fertility on an equal basis with others.(104)

VCAT concluded with the statement that sterilisation of a young woman with intellectual disability requires, as the High Court has made clear, justification of the most compelling kind. ZEH’s circumstances, on the evidence, are such that there is no therapeutic basis for the procedure, and there are less invasive and less permanent contraceptive options available to her. VCAT then acknowledged the loving intentions of the applicants, ZEH’s parents, and recognised that they were strong advocates for her rights and her best interests. However VCAT was not satisfied, in the current circumstances that there was compelling justification for the tubal ligation or that it was the least restrictive option. Consequently, it did not give its consent to the proposed treatment.(105) This case is referred to again at 15.7, below.

15.6.7 Queensland

The Queensland Civil and Administrative Tribunal (QCAT) is the consent authority in Queensland for the sterilisation of an adult who, because of impaired capacity of the matter, cannot make that decision for themselves.(106) QCAT is also the consent authority for the sterilisation of a child with an impairment.(107) As in New South Wales, Tasmania and Victoria, sterilising treatment in Queensland is treatment carried out on a person who is or is likely to be fertile that is intended, or reasonably likely, to make that person permanently infertile.(108)

QCAT may give its consent, in relation to adults with impaired capacity, only if it is satisfied, following the approach first taken in South Australia, that one of three differing kinds of circumstance exists. The first is that the sterilisation is medically necessary.(109)

The second circumstance is that the adult is, or is likely to be, sexually active and there is no method of contraception that could reasonably be expected to be successfully applied.(110) The third circumstance applies only to female adults and only if they have problems with menstruation. QCAT must be satisfied that ending their menstruation by sterilisation is the only practicable way of overcoming those problems.(111) These grounds for sterilisation also relate to children with an impairment but as part the legislative description of what is in the child’s best interests.(112)

Furthermore, in the case of both sets of circumstances in which non-therapeutic sterilisations may be allowed by QCAT, it has also to be satisfied that the sterilisation cannot reasonably be postponed and that the adult is unlikely, in the foreseeable future, to have capacity to make decisions about sterilisation or the child’s impairment is, or is likely to be, permanent.(113)

The Act also requires QCAT when dealing with these matters to take into account:

1. alternative forms of health care, including other sterilisation procedures, available or likely to become available in the foreseeable future, and
2. the nature and extent of short-term, or long-term, significant risks associated with the proposed procedure and available alternative forms of health care, including other sterilisation procedures.(114)

The Act specifically states that sterilisation is not medically necessary, or not in the child’s best interests, if it is for eugenic reasons or to remove the risk of pregnancy resulting from sexual abuse.(115)There are other detailed provisions about what has to be taken into account when deciding whether the proposed sterilisation is in the child’s best interests.(116)

The Act also requires any person or other entity that performs functions under the Act to apply the general principles set out in the Act and when dealing with an application for consent to sterilising treatment, the health care principles as well.(117)

A selection of Queensland cases dealing with applications for consent to the sterilisation of incapable adults is set out below in 15.7.

15.6.8 Northern Territory

In the Northern Territory, sterilisation of an adult is restricted health care, unless it occurs as a consequence of health care action that is taken primarily to treat an illness of or injury to the adult person.(118) As already noted in Chapter 12.10.8.2, and consistent with the situation in the States and the Australian Capital Territory, in the Northern Territory, neither decision makers appointed in advance personal plans nor guardians appointed by NTCAT may consent to health care action in relation to restricted health care, including sterilisation as defined in the last sentence.(119) So who has the power to give substitute consent to sterilisation of adults in the Northern Territory? (To here 7-9-16)

NTCAT has jurisdiction to deal with matters under the Personal Planning Act (NT).(120) Chapter 12.10.8.2 sets down who may bring an application to NTCAT requesting it to consent sterilising treatment on an adult person.

NTCAT is required, when exercising jurisdiction under the Act, to act in accordance with the decision-making principles, set out in the Act, as if it were a decision maker.(121) Those principles require NTCAT, in the unlikely event that the person has made an advance care statement about the matter (sterilisation), to make its decision on the application so as to give effect to the statement in a way that NTCAT reasonably believes the maker of the statement would have given effect to it in the circumstances . If the person has not made a relevant advance care statement NTCAT must make its decision in the way that it reasonably believes the person would have in the circumstances.(122)

Consistent with the policy of the Act of giving effect to decisions that the person would have made if they had the capacity to do so, NTCAT is required to make its decision in the way it reasonably believes the person would have done in the circumstances, even if the decision so made may not be in the person’s best interests.(123)

If NTCAT is unable to form a reasonable belief about what the person would have done in the circumstances, it must make its decision in the way it reasonably believes is in the person's best interests. In doing that NTCAT must take into account all relevant considerations weighing up those considerations, giving each of them the weight that it reasonably believes is appropriate in the circumstances.(124)

There is a non-exclusive list relevant considerations in the Act. The full list is set out below as follows:

1. protection of the person from harm, neglect, abuse and exploitation;
2. providing the person with appropriate care, including the taking of appropriate health care action;
3. promotion of the adult's happiness, enjoyment of life and wellbeing;
4. protecting the person's freedom of decision and action;
5. the ability of the person to be as independent as is practicable;
6. the ability of the person to achieve their maximum physical, social, emotional and intellectual potential;
7. the ability of the person to live in the general community and take part in community activities;
8. maintenance of the person's right to be treated with dignity and respect;
9. the ability of the person to maintain their preferred living environment and lifestyle;
10. maintenance or creation of a positive support network for the person;
11. protection of the person's property and financial resources from loss, damage or misuse;
12. protection of the person's right to confidentiality of information about him or her.(125)

As the jurisdiction relates only to adults who cannot give consent to health care action proposed for themselves, the Family Court of Australia will not have jurisdiction. However, it is likely that the Supreme Court would still have jurisdiction under its inherent parens patriae jurisdiction to deal with such applications. Whether the Court would exercise that jurisdiction at first instance or refer any application made to it to NTCAT reserving itself for a possible supervisory role either by way of appeal or prerogative writ will be a matter for the Court to determine when it considers the circumstances make it appropriate to do so.

In relation applications for medical procedures that were likely to render the patient infertile, some procedures will be necessary to treat an illness or injury.

15.7 How the State tribunals exercise their jurisdiction

As already noted, NCAT deals with a number of sterilisation cases each year. It is required to provide written reasons for every decision. VCAT deals with very few sterilisation cases and produces written reasons only on request of a party or when VCAT considers the particular application has a point of interest warranting written reasons. The South Australian Guardianship Board did not produce any publically available decisions nor did the Guardianship and Management of Property Tribunal of the Australian Capital Territory nor has its successor, ACAT, so far.(126)

Note however the Victorian case of ZEH (Guardianship) in which NCAT made use of the Charter of Human Rights Act 2006 (Vic) and referred to the International Convention on the Rights of Persons with Disabilities in coming to its decision not to consent to the sterilisation of a 25 year old woman with mild to moderate intellectual disability.(127)The case is set out in some detail in 15.6.6.3, above. Note also that the provisions in the Charter of Human Rights Act 2006 (Vic) are very similar in terms to the comparable provisions in the Human Rights Act 2004 (ACT).(128)

15.7.1 Most appropriate treatment and necessary to save life or prevent serious damage to health – New South Wales

When exercising its jurisdiction under the Guardianship Act 1987 (NSW) to deal with applications for consent to sterilising treatment, NCAT has an established practice of having the person the hearing is about separately represented, unless the case is a clear one in which the order sought is almost inevitable. NCAT relies on the reports provided by the applicant rather than seeking a separate report of its own and takes oral evidence from the person’s family carers and other carers as well as from the doctors proposing the treatment or supporting the application.

The person the hearing is about attends the hearing unless that is either impractical or inappropriate. In any event NCAT seeks the views of the person, unless the person cannot express views.

NCAT first decides whether or not the person has the capacity to give a valid consent to the proposed treatment. Only if the person cannot give a valid consent to the treatment does NCAT have jurisdiction to deal with the application.

The next step is to decide whether the proposed treatment is the most appropriate form of treatment for promoting and maintaining the person’s health and well-being. This is the first part of the two part test and involves a consideration of the alternative treatments to see whether they have been tried and if not, why they have not been tried.(129) Such treatments may include contraceptive pills, oral progestogens, Depo Provera, Implanon and no treatment at all. If reversible treatments have been tried and have not been successful or it is found to be inappropriate to try them, NCAT will move on to the second part of the test.

If the proposed treatment is necessary to save the person’s life, approval will be given without delay as a result of an urgently organised hearing. Usually the question is whether the treatment is necessary to prevent serious damage to the person’s health.(130) This involves a consideration of both the person’s physical and psychological health together with the form of sterilising treatment proposed. Matters that will be considered include evidence about anaemia and its effect on the person, the nature and extent of any bleeding and if the bleeding is heavy and prolonged and its effect on the person’s physical and psychological health. Also relevant is any evidence of the negative consequences of the use of particular reversible treatments as well as behavioural problems that appear related to the person’s menstruation and the nature and extent of those problems. Again, evidence of the consequences of no treatment is relevant.

An example of these matters being considered is a 1996 case in which the then Guardianship Tribunal gave its consent to a hysterectomy for a 17 year old woman who had a severe level of intellectual disability and who had heavy and prolonged periods which appeared to have significant impact on her behaviour. Medications had either been unsuccessful or were unlikely to assist her. (131)

Prior to July 2001, the Supreme Court had the jurisdiction to deal with applications for consent to the carrying out of sterilisations on children up to the age of 16 years under the Children (Care and Protection) Act 1987.(132) In 1996 the mother and sole carer of a 14 year old girl who was severely disabled both physically and mentally applied to the Supreme Court for consent to a hysterectomy being carried out on her daughter so as to render her permanently infertile and to prevent from continuing to menstruate.(133) The girl had been having menstrual periods for two years and had been experiencing extremely heavy and prolonged bleeding with each cycle. At least two of these periods were associated with extreme terror on her part. Treatment with oral Progesterone failed to control the bleeding because it caused nausea and vomiting. Depo Provera was also tried and that had not achieved cyclical control; however the girl’s neurological problems appeared to have worsened. She had more epileptic seizures and fatigue. She also had fluid retention, rash and acne, dizzy spells and sudden vomiting, disruption of sleep, long periods of bleeding, leg cramps, depression and other unusual symptoms.

Bryson J noted that the test was stringent but that the effects of her menstruation constituted serious damage to the girl's health. Consequently, there was a necessity to carry out the operation because the other available measure of control has been tried and had not been effective.(134) Nevertheless, in his view this did not mean that the court should decide to consent to the proposed treatment. It had a discretion in that regard which it should exercise by reviewing, “the available material relating to the interests of the child, which are paramount, and other relevant interests, and come to a conclusion on the question whether or not consent should be given.”(135)

While he considered that it was necessary to carry out the proposed treatment, he noted:

The surgery under consideration is drastic and final; irreversible. It has to be brought under attention that the result of the court's consent will be that the child will permanently lose her reproductive capacity. The result is an extreme one. However the child's mental retardation and manifold disabilities are so great that it is in my judgment not possible that, if the operation does not take place, the child could ever exercise her reproduction capacity with any understanding of what was taking place, still less with any of the self-realisation which comes with such understanding.(136)

Bryson J went on to note that the burden of looking after any child would fall in the girl’s mother and that the interests of the girl required the Court to consent to the treatment. He also stated that the interests of the mother required this as well and then came back to the interests of the girl with the following:

The interests of the child which are involved are not only those closely related to her medical condition. Her interests and well-being will also be enhanced by reduction or containment of the degree of difficulty of the management of her life, including the basic tasks of daily living, and the availability to her of assistance in such management, provided as they now are by her mother but a lifelong necessity to be provided for her by some persons.(137)

It is respectfully suggested that while in some cases not only must the necessity for the treatment to be carried out be shown, but also that the Court should exercise it discretion to give its consent, it is going beyond the provisions of the legislation to build in a best interests test which is not provided for in the legislation.

For an example of the then NSW Guardianship Tribunal exercising its jurisdiction under the Children and Young Persons (Care and Protection) Act 1998 (NSW), see BAH [2009] NSWGT 8.

15.7.2 Best interests – Australian Capital Territory, Western Australia, Tasmania, Victoria, the Family Court and Supreme Courts

In a 2004 case involving an application for consent to a hysterectomy for a 14 year old girl who had begun menstruating approximately two years before, the Tasmanian Guardianship Board set out the processes for investigating and hearing such applications including the collection of reports and the appointment of a separate representative for the person the hearing was about.(138) The Board considered the evidence relating to the various alternatives to hysterectomy and applied the relevant criteria among those set out above. In deciding between the proposed treatment and the only viable alternative, it applied a least restrictive alternative approach and decided it could not consent to a hysterectomy until it was shown that the alternative treatment did not work or was inappropriate. It also applied the view of the majority of the High Court in Marion’s Case that is applicable when the legislation under which the tribunal is operating does not contain a statutory test. This is that the function of a court or tribunal when asked to authorise sterilisation is to decide whether, in the circumstances of the case, sterilisation is in the best interests of the child. The Tasmanian Board noted the opinion of the High Court in Marion’s Case(139) that the best interests of the person for whom the sterilising operation was proposed were confined by the notion of the operation being a step of last resort and took the view that it had to be certain that no other procedure or treatment would work before it could consent to a sterilisation.(140)

In the Australian Capital Territory, Western Australia and Tasmania the test is “best interests” of the incapable person, which is also the common law test applied by the Family Court and the Supreme Courts. The Tasmanian Guardianship and Administration Board has already noted the fact that sterilisation is a step of last resort confines the scope of “best interests”.(141) However, the decisions of the Family Court have assisted the tribunals in coming to their decisions. The Family Court cases are also referred to as they show the approach followed by that court in dealing with sterilisation applications.

In Re Marion (No 2), decided days before the High Court gave its decision in Marion’s Case, Nicholson CJ of the Family Court set down what he considered to be the relevant factors in that case to determine whether the proposed hysterectomy was in the best interests of the child. These were:

1. the particular condition the child had which required the procedure or treatment,
2. the nature of the procedure or treatment proposed,
3. the reasons for which it is proposed that the procedure or treatment be carried out,
4. the alternative courses of treatment that are available in relation to that condition,
5. the desirability of and effect of authorising the procedure or treatment proposed rather than the available alternatives,
6. the physical effects on the child and the psychological and social implications for the child of authorising, or not authorising, the proposed procedure or treatment,
7. the nature and degree of any risk to the child of authorising, or not authorising, the proposed procedure or treatment, and
8. the views (if any) expressed by the child, their guardian, the person entitled to their custody and the person responsible for their daily care and control about the proposed procedure or treatment and to any alternative procedure or treatment.(142)

Nicholson CJ’s approach was approved by the Full Court of the Family Court in P and P and Legal Aid Commission of NSW and applied in sterilisation of children cases in the Family Court.(143)

In a 2007 case WASAT led by its then president, Barker J, considered P and P and Legal Aid Commission of NSW and other cases in which Nicholson CJ had set out matters to be considered when dealing with sterilisation cases. In a form of summary of those cases, WASAT outlined a framework for the inquiry it would conduct into whether the proposed sterilisation was in the best interests of the incapable person, as follows:

1. that consent may be given by WASAT if consent is in the best interests of the person under guardianship,
2. because of the seriousness of the decision to be made, WASAT must be convinced by clear and compelling evidence that a procedure is necessary in the best interests of that person,
3. in the context of sterilisation, "best interests" means that such a procedure should be one of last resort although it is not necessary that all possible procedures have been tried to come to a view that a procedure is one of last resort and that no other treatment will work,
4. WASAT needs to weigh up the factors in the particular circumstances of the person under guardianship in support of the procedure and against it, including the disability of that person,
5. the best interests of the person under guardianship are separate to those of her carers and her mother. The views and wishes of the mother are not determinative of the best interests of the person but are of considerable importance in assessing the person's best interests in light of her role as guardian and [the mother’s] involvement in the life of the person.(144)

The case was an application for consent to sterilisation of a 22-year-old woman with intellectual disability brought to WASAT by her mother, who was also her guardian.(145) The medical evidence did not support the need for a hysterectomy on either psychiatric or gynaecological grounds. The psychiatric treatment the young woman was receiving, including the use of medications, had settled her extreme agitation which her mother believed was associated with her menstruation. The evidence of the gynaecologists and others confirmed that the young woman’s menstrual cycle was suppressed so that a hysterectomy was not indicated for contraceptive purposes or for menstrual management.(146) While WASAT acknowledged the mother’s anxiety for her daughter’s safety, it held that the proposed sterilisation was not necessary from a medical or behavioural point of view and could not be justified for menstrual management.(147)

In a 1998 case, the Guardianship and Administration Board of Western Australia, the predecessor of WASAT, used the approach Nicholson CJ had adopted in In re Jane(148) to determine the best interests of the incapable person and held that it was in the best interests of the 27 year old woman that the case was about that the sterilising treatment be carried out.(149)The Board gave its consent.

In a 1994 case the Western Australian Board formed the view, applying the same approach from In re Jane, that it was in the best interests of the young woman the hearing was about to have the proposed tubal ligation, but held that the presumption that the young woman was capable had not been rebutted, so could not appoint a guardian for her. Consequently, the Board dismissed both the application for a guardian to be appointed and the application for the sterilisation by way of tubal ligation.(150)

In a 2009 case in which there was ample gynaecological and psychological evidence to justify consent to a hysterectomy to be carried out on a 23 year old woman who had a whole of life intellectual disability on either a best interests test or on the tests that apply in New South Wales and South Australia and Queensland, WASAT accepted the argument that the proposed hysterectomy was not, in the circumstances of the case, a “procedure for sterilization” because it was, “proposed as a last resort and that its sole purpose is to stop her menstruating in order to put an end to her continuing bleeding and pain”.(151) Consequently the consent of WASAT was not required. WASAT appointed the young woman’s parents, as her guardians for the purpose of consenting to the hysterectomy and any other treatment and health care.

Section 56 of the Guardianship and Administration Act 1990 (WA) provides that:

[A] procedure for sterilization does not include a lawful procedure that is carried out for a lawful purpose other than sterilization but that incidentally results or may result in sterilization.

In justifying its decision, WASAT said:

Unlike legislation, such as in New South Wales, which focuses on the effect of proposed treatment, s 56 of the [Guardianship and Administration Act 1990 (WA)] focuses on the purpose of the procedure. A procedure that 'incidentally results or may result in sterilisation' is specifically excluded. Treatment which is not for the purpose of sterilisation, even if it results in sterilisation, does not require the consent of the Tribunal.(152)

While section 56 does focus on the purpose of the procedure, the purpose of the section is to make clear that treatment such as for cancer that as an unintended or undesirable consequence “incidentally results or may result in sterilization” is not intended to be subject to the consent procedure for sterilising procedures. It is respectfully suggested that extending section 56 to hystectomies which will have the effect of sterilising any fertile woman is going far beyond not only the intention of the section but also the purpose and intention of the legislation which is to protect incapable women from being sterilised without proper reasons. As already noted the evidence in this case clearly justified WASAT giving its consent, on the grounds of best interests, within the limits imposed by Part 5 Division 3 of the Act.

15.7.3 Three circumstances, medical necessity, no contraception applicable or problems with menstruation – South Australia and Queensland

In a 2000 case the then Queensland Guardianship and Administration Tribunal (QCAAT) dealt with an application for consent to a hysterectomy for a for a 31 year old woman who had had an intellectual disability and epilepsy since birth. The Tribunal considered that the case fell into the third circumstance in which sterilising treatment could be considered, namely problems with menstruation and found that all the statutory criteria relating directly to sterilisation had been met.(153)

QCAAT then proceeded to consider a number of the general principles and the health care principle. It took the view that while the health care principle did not strictly apply to sterilisations, the principle was, “in effect a restatement of the common law principles which are applicable in cases of this nature namely that the treatment must be in the persons best interests”.(154) QCAAT then considered some elements of the majority’s judgment in Marion’s Case, but did not refer to the majority’s view that the best interests of the person for whom a sterilising operation was proposed were confined by the notion of the operation being a step of last resort.(155) It concluded that:

[A]ll the criteria set out in the Act have been satisfied and that the proposed [sterilisation] is in [the woman’s] best interests and is the most appropriate treatment to promote and maintain [the woman’s] health and well being.(156)

In a 2004 case QCAAT took a similar approach in a menstruation case in relation to a 23 year old woman with significant whole of life intellectual and physical disabilities. Again it found that all the statutory criteria relating directly to sterilisation had been met, but then went on to apply the general principles and the health care principle and concluded that “taking into account all the available evidence the hysterectomy is overall in [the young woman’s] best interests”.(157)

The evidence in both cases justified QCAAT consenting to the proposed hysterectomies based on the statutory criteria relating to sterilisations. Having considered and applied those criteria, and formed the opinion that, by sterilisation, ending their menstruation was the only practicable way of overcoming the problems of those women, QCAAT has also met the requirement of acting in their best interests. No separate consideration of that matter was required in either case. While separate consideration of some or all the general principles may be required in particular and difficult case, it will not be required in most cases. If separate consideration of general principles, particularly of the “best interests” principle unlimited by the confining influence of sterilisation being a step of last resort becomes the accepted approach, the risk is that “best interests” will becomes the controlling criterion. The result would be that the statutory criteria applicable to sterilisation would become relegated to a secondary position. Such an outcome would be contrary to the intention of Parliament. Nevertheless, that approach appears to have been taken in the 2004 case.(158)

Notes

1 : Kittrie, N, The Right to be different – deviance and enforced therapy, Baltimore, The Johns Hopkins Press, 1971, 310-311.

2 : Ibid. 311.

3 : Buck v Bell [1927] USSC 105; 274 US 200, 206 (1927).

4 : Ibid. 205.

5 : Ibid. 207.

6 : Peter, W W, “Germany’s Sterilization Program”, 24 American Journal of Public Health, No 3, March 1934, 187.

7 : Ibid.

8 : Golhar, J, “The Sterilization of Women with an Intellectual Disability” (1991) 10(2) University of Tasmania Law Review 157, 174.

9 : Ibid. 164.

10 : Ibid. 165.

11 : Kittrie op cit (footnote 1), 314.

12 : Maxon v Superior Court 135 Cal App 3d 626, 632 (1982). See also In re Grady 426 A 2d 467, 472-474 (1981).

13 : Goldhar op cit (footnote 8), 174.

14 : Ibid. 177.

15 : Ibid.

16 : Ibid.

17 : Hayes, S and Hayes, R, Mental Retardation, Sydney, Law Book Company, 1982, 76-79.

18 : Ibid. 73.

19 : Ibid. 74-76.

20 : Ibid. 80.

21 : Mental Health Amendment Act (SA) 1985 ss 28c and 28e(1) and (2).

22 : Ibid. s 28e(2)(b)

23 : Parliamentary Debates South Australia 45^th Parliament, 1985 Vol. 1, 1162.

24 : Ibid. 1163-1164.

25 : NSW Parliamentary Debates, Third Series, Vol 199, (12 November, 1987), p 15939.

26 : Part 5, Guardianship Act 1987 (NSW).

27 : In re a Teenager (1989) FLC 92-006, 77,231.

28 : In re Jane [1988] FamCA 57; (1988) 12 Fam LR 662.

29 : Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15, (1992) 175 CLR 218 (Marion’s Case).

30 : Ibid. 277.

31 : Ibid. 250-253.

32 : Ibid. 259-260.

33 : (1992) 17 Fam LR 336, 351-352.

34 : See for example, Re BW (unreported, Family Court of Australia, Chisholm J, 10 April 1995).

35 : 1994] HCA 20[1994] HCA 20; , (1994) 181 CLR 583.

36 : Constitution of the Commonwealth, s 51 (xxi) and (xxii).

37 : F v R (unreported, Powell J, NSW Supreme Court, 2 May 1986) BC8601063. See also RH v CAH [1984] 1 NSWLR 694.

38 : Gardner; re BWV [2003] VSC 173 [99]. However, it should be noted that the Guardianship and Administration Act 1990 (WA) s 3A specifically preserves the inherent jurisdiction of the Supreme Court of Western Australia.

39 : [1994] HCA 20, (1994) 181 CLR 583.

40 : Ibid. 624-626.

41 : Constitution of the Commonwealth of Australia s 51(xxi) and (xxii).

42 : Re BW (unreported, Family Court of Australia, Chisholm J, 10 April 1995) 21.

43 : For a paper showing experience in handling such difficult issues see a paper by Julie Duffy, Deputy Public Guardian (Qld), Making decisions on reproductive and sexual health for and by with impaired decision making capacity, given at the 2016 AGAC National Conference , 17-18 October 2016. See website http://www.agac.org.au/conference-papers/94-2016-conference-papers.

44 : Guardianship and Administration Act 1993 (SA), ss 3 and 61(1) and (2). Doctors may carry out a sterilising treatment under s 13 of the Consent to Medical Treatment and Palliative Care Act 1995 (SA) if the patient is unable to consent and the doctor is of the opinion that the treatment is necessary to meet an imminent risk to the life or health of the patient and another doctor who has personally examined the patient has given a written, supporting opinion

45 : Guardianship and Administration Act 1993 (SA), s 3.

46 : Ibid. s. 61(2)(b)(i).

47 : Ibid. s 61(2)(b).

48 : Guardianship Act 1987 (NSW), Part 5. Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15, (1992) 175 CLR 218.

49 : Mental Health Act 2007 (NSW) ss 4, 98, 102 and 103(1).

50 : Guardianship Act 1987 (NSW) s 33(1). Note that in_ SFB_ [2016] NSWCATGD 60, NCAT dealt with an application for a myomectomy to be carried out on a woman unable to give a valid consent to her own treatment. NCAT noted that myomectomy was the surgical removal of uterine fibroids and that, in contrast to a hysterectomy the uterus remains preserved and the woman retains her reproductive potential. Consequently NCAT held that myomectomy was not special medical treatment requiring its consent.

51 : This is the effect of ss 33(1) and 36(1) of the Guardianship Act 1987 (NSW).

52 : Ibid. s 33(2). For a case in which NCAT was not satisfied that the person the subject of the application was incapable of understanding the general nature and effect of the sterilising treatment proposed see, UMG [2015] NSWNCATGD 54.

53 : Ibid. s 45(1) and (2). In XTV [2012] NSWGT 5, [91]-[95], the then Guardianship Tribunal confirmed that the NSW test for consent to sterilising treatment is not a “best interests” test.

54 : Mental Health Act 2007 (NSW) s 103(2).

55 : Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 3 and 175.

56 : Ibid. s 175(5)(a).

57 : Ibid. s 175(3).

58 : Guardianship and Management of Property Act 1991 (ACT), ss 8C(2) and 70(1) and Dictionary. The relevant provisions of the Act commenced 7 January 1992.

59 : Ibid. ss 7 and 69.

60 : Ibid. s 70.

61 : Ibid. s 70(3).

62 : Guardianship and Administration Act 1990 (WA) ss 56 and 63(1).

63 : Ibid. s 43(1).

64 : Ibid. s 43(1)(a).

65 : Ibid. s 63(1).

66 : Ibid. s 56A.

67 : Ibid. ss 57(1) and 58 (1).

68 : Ibid. s 56.

69 : Ibid. s 60

70 : Ibid. s 57(1).

71 : Guardianship and Administration Act 1995 (Tas) came into force 1 September 1997.

72 : Ibid. s 3.

73 : Ibid. ss 44(1)(a) and 46(1).

74 : Ibid. s 19(1). However see, MG (Medical Consent) [2004] TASGAB 5, a case in which an application was made to the Board under Part 6 of the Guardianship and Administration Act 1995 (Tas) for special treatment, namely sterilisation, in relation to a 14 year old girl considered never to be capable of giving consent to her own treatment. The application was refused on substantive grounds after a full hearing, not jurisdictional grounds relating to the age of the patient.

75 : Ibid. s 45(1).

76 : Ibid. s 45(2). There were no other matters the Board had to take into account set out in the Guardianship and Administration Regulations 2007 (Tas).

77 : Ibid. s 6.

78 : MG (Medical Consent) [2004] TASGAB 5, [75]. See also Briginshaw v Briginshaw [1938] HCA 34, 60 CLR 336 and Re L and M [1993] FamCA 124; (1993) 17 Fam LR 357.

79 : Guardianship and Administration Act 2019 (Vic) Pt 6.

80 : Ibid s 140.

81 : See Medical Treatment Planning and Decisions Act 2016(Vic), generally and s 6 in particular.

82 : Medical Treatment Planning and Decisions Act 2016 (Vic) s 6.

83 : Ibid.

84 : Guardianship and Administration Act 2019 (Vic) s 145.

85 : This is the effect of s 42E(aa) of theGuardianship and Administration Act1986(Vic) and Medical Treatment Planning and Decisions Act 2016 (Vic) ss 12(3)(c)(i), 22(2)and(3) and 23.

86 : Ibid s 145(2)(a).

87 : Ibid s 145(1)(b).

88 : Ibid s 145(1)(c).

89 : Ibid s 145(2)(d).

90 : Ibid s 145(3)(a).

91 : Ibid. s 42B(1).

92 : Guardianship and Administration Act1986(Vic), s 36. This is particularly so when account is taken of the matters set out in Medical Treatment Planning and Decisions Act2016(Vic) s 4(2), (3) and (4) in relation to providing support to a person exercising their decision-making capacity.

93 : Guardianship and Administration Act 1986 (Vic) s 42B(2) and (3.)} Also, VCAT must commence to hear the application within 30 days after the application has been received.{{Ibid s 143(2) and s 143(3).

94 : ZEH (Guardianship) [2015] VCAT 2051.

95 : Ibid s 145(1)(c).

96 : Ibid. [23] and [24].

97 : Ibid. [27].

98 : Ibid s 8(1)(c).

99 : Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15, (1992) 175 CLR 218. ZEH [2015] VCAT 2051, [42].

100 : [1992] HCA 15, Brennan J [6].

101 : Ibid. Brennan J [7].

102 : EH (Guardianship) [2015] VCAT 2051, [49].

103 : Ibid. [57].

104 : Ibid. [58]-[60].

105 : Ibid. [67].

106 : Guardianship and Administration Act 2000 (Qld) s. 70. The provisions in relation to the sterilisation of adults commenced 1 July 2000. For an example of QCAT giving consent to the total hysterectomy with preservation of ovaries of a young woman, see EFK [2017] QCAT 434.

107 : Ibid. s. 80C(1). Impairment in a child is defined in s 80A as a cognitive, intellectual, neurological or psychiatric impairment. The provisions in relation to the sterilisation of children commenced 18 November 2003.

108 : Ibid. Schedule 2, ss 7(b) and 9for and adult and s 80B for a child.

109 : Ibid. s 70(1)(a)(i).

110 : Ibid. s 70(1)(a)(ii).

111 : Ibid. s 70(1)(a)(iii). For an application based on the need to cease menstruation by sterilisation see, HGL (No 2) [2011] QCATA 259.

112 : Ibid. s 80D.

113 : Ibid. s 70(1)(b) and (c) and 80D(1).

114 : Ibid. ss 70(3) and 80D(3)(c)(iii) and (iv).

115 : Ibid. ss 70(2) and 80D(2).

116 : Ibid. s 80D(3).

117 : Ibid. s 11 and Schedule 1 ss 1-12.

118 : Advance Personal Planning Act (NT) s 25 (2)(a) and Guardianship of Adults Act (NT) s. 8(1)(a).

119 : Advance Personal Planning Act (NT) s 25(1) and (2) and Guardianship of Adults Act (NT) ss. 8 and 23(2).

120 : Advance Personal Planning Act (NT) s 56.

121 : Ibid. s 57. The decision-making principles are set out in s 22

122 : Ibid. s 22(2) to (4). The exceptions to these requirement are set out in ss 22(2)(a) and 23. The way NTCAT is to determine what the person would have done in the circumstances is set out in s 22(5).

123 : Ibid. s 22(5A).

124 : Ibid. s 22(6) and (6A).

125 : Ibid. s 22(7).

126 : As at 21-6-2016.

127 : ZEH (Guardianship) [2015] VCAT 2051.

128 : Compare Human Rights Act 2004 (ACT) ss. 8(3) and 10(2) with Charter of Human Rights Act 2006 (Vic) ss. 8(3) and 10(c).

129 : Guardianship Act 1987 (NSW) s 45(1).

130 : Ibid. s 45(2).

131 : Matter No 96/0717 (unreported, Guardianship Tribunal, 21 August 1996). For a less dramatic case in which the then Guardianship Tribunal gave consent for a hysterectomy on a woman, aged 46 with low moderate intellectual disability and no capacity to consent to her own treatment, because of the current and likely future effects of fibroids, see LDS [2012] NSWGT 9.

132 : Children (Care and Protection) Act 1987 (NSW) s 20B.

133 : JLS v JES (1996) 20 Fam LR 485.

134 : Ibid. 493.

135 : Ibid. 494.

136 : Ibid.

137 : Ibid.

138 : MG (Medical Consent) [2004] TASGAB 5, [2].

139 : Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) [1992] HCA 15, (1992) 175 CLR 218, 259.

140 : MG (Medical Consent) [2004]TASGAB 5, [76].

141 : MG (Medical Consent) [2004] TASGAB 5, [65].

142 : (1992) 17 Fam LR 336, 351-352.

143 : (1995) 19 Fam LR 1. See for example, Re BW (unreported, Family Court of Australia, Chisholm J, 10 April 1995).

144 : AD [2007 WASAT 123 [30].

145 : Ibid. [1].

146 : Ibid. [3].

147 : Ibid. [100]-[101].

148 : In re Jane [1988] FamCA 57; (1988) 12 Fam LR 662. In turn, Nicholson CJ had adopted his approach from the standards developed by Pashman J of the Supreme Court of New Jersey in In re Grady 426 A 2d 467 (1981).

149 : Re D (1998) 24 SR (WA) 163.

150 : Re LMD (1994) 13 SR (WA) 24.

151 : JC and CS [2009] WASAT 90, [70].

152 : Ibid. [68].

153 : Re AX [2000] QGAAT 4 [36]-[40].

154 : Ibid. [45].

155 : Compare Re AX [2000] QGAAT 4 [46]-[53] with Secretary, Department of Health and Community Services v JWB and SMB [1992] 15[1992] HCA 15; , 175 CLR 218, 259-260.

156 : Re AX [2000] QGAAT 4 [55].

157 : Re CMH [2004] QGAAT 7 [72].

158 : Ibid.

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