Special health care

The Tribunal may consent, for an adult with impaired capacity for the procedure to sterilisation of the adult only if the Tribunal is satisfied-

(a)  one of the following applies-

• the sterilisation is medically necessary;
• 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;
• if the adult is female- the adult has problems with menstruation and cessation of menstruation by sterilisation is the only practicable way of overcoming the problems; and

(b)  the sterilisation can not reasonably be postponed; and
(c)  the adult is unlikely, in the foreseeable future, to have capacity for decisions about sterilisation.

Sterilisation is not medically necessary if the sterilisation is-

• for eugenic reasons; or
• to remove the risk of pregnancy resulting from sexual abuse

Also, in deciding whether to consent for the adult to a sterilisation procedure, the tribunal must take into account-

• alternative forms of health care, including other sterilisation procedures, available or likely to become available in the foreseeable future; and
• 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.

An adult’s sterilisation to which the Tribunal has consented for the adult is not unlawful.

Resources:

• Section 70 Guardianship and Administration Act 2000
• AGAC Protocol for Special Medical Procedures (Sterilisation) 6 May 2009

To make an application to the Tribunal for consent to a sterilisation procedure you will need to lodge the following documents:

1. Completed application for consent to special health care in Form 62
2. A statutory declaration containing the following information about the adult:
   1. The family, educational, social and employment background of the adult
   2. Identification of any issues the adult is experiencing with menstruation and/or with sexual activity
   3. What other less intrusive methods than sterilisation have been used or considered to respond to the identified issues
   4. In what way those alternative methods have not been able to be successfully applied to find a practicable response to the identified issues
   5. If the application is made on the basis that the sterilisation is medically necessary, set out the facts and arguments on which the assertion is being made
   6. Why the sterilisation is being sought at this time and whether the procedure can be reasonably postponed
   7. What discussions have ben had with the adult about undergoing a sterilisation procedure and the adult’s response to the procedure
3. A Health Professional Report completed by the adult’s treating health professional or other report which addresses the capacity of the adult to consent to the sterilisation procedure themselves.
4. A medical report from the adult’s treating health professional/s explaining the alternative methods that have been tried in an attempt to manage or achieve cessation of sterilisation or otherwise address the issues for which sterilisation is sought to address and the reasons why those alternative forms of health care were not successful.
5. A medical report completed by the adult’s treating specialist setting out the particulars of the proposed procedure together with information about alternative forms of health care, including other sterilisation procedures, available or likely to become available in the foreseeable future; and 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, the likely long term social and psychological effects of the procedure on the person.
6. A medical report from an independent specialist addressing whether the sterilisation is medically necessary or whether cessation of menstruation by sterilisation is the only practicable way of overcoming problems that the adult has with menstruation.

The Tribunal will usually appoint the Public Guardian as the representative for the adult to represent the adult’s views, wishes and interests in the proceeding. The QCAT Registry will provide the application and any documents filed in support of the application to the adult and the Public Guardian. The QCAT Registry will also give written notice of the application to those who have a close and continuing relationship with the adult.

Provision of the documents outlined above with the application will provide the best chance for the application to be heard and determined as a matter of urgency.  The Tribunal may make directions for the provision of further information, the Tribunal considers is necessary to hear and determine the application. The Tribunal will make a decision following an oral hearing.

The Tribunal may consent, for an adult with impaired capacity for the procedure, to termination of the adult’s pregnancy only if the tribunal is satisfied the termination may be performed by a medical practitioner under the Termination of Pregnancy Act 2018.

Termination of an adult’s pregnancy, to which the Tribunal has consented for the adult, is not unlawful.

To make an application for consent to termination of an adult’s pregnancy you will need to provide the following documents:

1. Completed application for consent to special health care Form 62
2. Completed Health Professional Report or other medical report which addresses the capacity of the adult to themselves provide consent to the procedure.
3. A statutory declaration which sets out:
   1. the family, educational, social and employment background of the adult and
   2. the discussions that have been had with the adult about undergoing the procedure; and
   3. the views of the adult in relation to the proposed procedure.
4. If the adult is not more than 22 weeks pregnant, a medical report from the adult’s treating specialist which addresses the length of the pregnancy, details of the procedure, who would perform the procedure, whether the procedure may be performed by a medical practitioner under the Termination of Pregnancy Act 2018.
5. If the adult is not more than 22 weeks pregnant, a medical report from an independent specialist addressing the adult’s capacity for providing consent to the procedure and whether the termination may be performed by a medical practitioner under the Termination of Pregnancy Act 2018.
6. If the adult is more than 22 weeks pregnant, a report from the relevant medical practitioner that addresses the following matters:
   1. The length of the pregnancy, and details of the procedure to be performed;
   2. that, in all the circumstances including the relevant medical circumstances, the woman’s current and future physical, psychological and social circumstances and the professional standards and guidelines that apply to the medical practitioner in relation to the performance of the termination, the termination should be performed;
   3. the medical practitioner has consulted with another medical practitioner who also considers that, in all the circumstances including those outlined in (b) above, the termination should be performed.
7. If the adult is more than 22 weeks pregnant, a report from the other medical practitioner consulted by the treating medical practitioner as referred to in 6(c) above.

The Tribunal will usually appoint the Public Guardian as the representative for the adult to represent the adult’s views, wishes and interests in the proceeding. The QCAT Registry will provide the application and any documents filed in support of the application to the adult and the Public Guardian. The QCAT Registry will also give written notice of the application to those who have a close and continuing relationship with the adult.

Provision of the documents outlined above with the application will provide the best chance for the application to be heard and determined as a matter of urgency.  The Tribunal may make directions for the provision of further information, the Tribunal considers is necessary to hear and determine the application. The Tribunal will make a decision following an oral hearing.

The Tribunal may consent, for an adult with impaired capacity for the particular procedure to removal of tissue from the adult for donation to another person only if the Tribunal is satisfied -

• the risk to the adult is small; and
• the risk of failure of the donated tissue is low; and
• the life of the proposed recipient would be in danger without the donation; and
• no other compatible donor is reasonably available; and
• there is, or has been, a close personal relationship between the adult and proposed recipient.

The Tribunal may not consent if the adult objects to the removal of tissue for donation.

If the Tribunal consent to removal of tissue for donation, the tribunal’s order must specify the proposed recipient.

The Guardianship and Administration Act 2000 (the Act) provides that the Tribunal may approve special medical research or experimental health care.

Special medical research or experimental health care for an Adult means:

• medical research or experimental health care relating to a condition the Adult has or to which the Adult has a significant risk of being exposed, or
• medical research or experimental health care intended to gain knowledge that can be used in the diagnosis, maintenance or treatment of a condition the Adult has or has had.

Special medical research or experimental care does not include psychological research or approved clinical research.

The Tribunal may consent, for an adult with impaired capacity for the special health matter concerned, to the adult’s participation in special medical research or experimental health care only if the tribunal is satisfied about the following:

• the special medical research or experimental health care is approved by an ethics committee;
• the risk and inconvenience to the adult and the adult’s quality of life is small;
• the special medical research or experimental health care may result in significant benefit to the adult or other persons with the condition;
• the special medical research or experimental health care can not be reasonably carried out without a person who has or has had the condition taking part;
• the special medical research or experimental health care will not unduly interfere with the adult’s privacy.

Apply for approval to conduct special medical research or experimental health care

NOTE: The Tribunal may not consent to the adult’s participation in special medical research or experimental health care if the adult objects, or the adult, in an enduring document, indicated unwillingness to participate in the special medical research or experimental health care.

Sterilisation is health care of a child who is, or is reasonably likely to be, fertile that is intended, or reasonably likely, to make the child, or to ensure the child is, permanently infertile.

However, sterilisation does not include health care without which an organic malfunction or disease of the child is likely to cause serious or irreversible damage to the child’s physical health.

The Tribunal may consent to the sterilisation of a child with an impairment.

The Tribunal may consent to the sterilisation only if the tribunal is satisfied the sterilisation is in the best interests of the child. Section 80 of the Guardianship and Administration Act 2000 sets out the requirements for the tribunal to conclude that the sterilisation is in the child’s bests interests

A child’s sterilisation, to which the tribunal has consented, is not unlawful.

Resources:

• Chapter 5A of the Guardianship and Administration Act 2000
• AGAC Protocol for Special Medical Procedures (Sterilisation) 6 May 2009

To make an application for consent to the sterilisation of a child with an impairment you will need to lodge:

1. a completed application for consent to special health care Form 62
2. a report from a health professional with addresses the impairment of the child and, in particular, that the impairment results in a substantial reduction of the child’s capacity for communication, social interaction and learning and that the impairment is, or is likely to be permanent and there is a reasonable likelihood, when the child turns 18, the child will have impaired capacity for consenting to sterilisation.

The Tribunal will appoint a person to separately represent the child before the Tribunal. Active parties to the proceeding will be given notice of the application and the hearing. Active parties are entitled to access documents before the Tribunal.

The active parties to the proceeding are:

• the child;
• the applicant;
• any parent or guardian of the child;
• if a parent or guardian of the child is not the primary carer of the child, the primary carer of the child;
• a doctor who is treating the child;
• the child representative for the child;
• a person joined as a party to the proceeding by the tribunal.

The Tribunal may make directions for the provision of further information, the Tribunal considers is necessary to hear and determine the application.

The Tribunal will make a decision following an oral hearing.