Standing Committee of Attorneys General (SCAG): Issues Paper on the Non-Therapeutic Sterilisation of Minors with a Decision-Making Disability


This Issues Paper was prepared by the Australian Standing Committee of Attorneys-General (SCAG) Working Group in 2004. The Standing Committee of Attorneys-General (SCAG), is the national ministerial council made up of the Australian Attorney-General and the State and Territory Attorneys-General. SCAG provides a forum for Attorneys-General to discuss and progress matters of mutual interest. It seeks to achieve uniform or harmonised action within the portfolio responsibilities of its members. The Issues Paper does not necessarily represent the views of the Standing Committee of Attorneys-General or any individual Attorney-General.


Introduction

At the meeting of the Standing Committee of Attorneys-General (SCAG) in August 2003 Ministers agreed that:

  • A nationally consistent approach to the authorisation procedures required for the lawful sterilisation of minors with a decision making disability is appropriate;
  • State and Territory officers in consultation with Commonwealth officers should develop draft model State and Territory provisions to confer on guardianship or similar tribunals jurisdiction to authorise sterilisation procedures on minors with a decision making disability, such jurisdiction to operate concurrently with that of the Family Court of Australia and the Federal Magistrates Service; and
  • In developing the draft model State and Territory provisions, officers should develop options for nationally consistent criteria for such authorisation by guardianship or similar tribunals for further discussion.

A working party of State and Territory officers has been established to progress the draft model Bill and Guidelines.


Background

At least up until the 1950s a significant number of non-therapeutic surgical sterilisations were performed on young women with a disability for eugenic reasons. That is, sterilisations were performed on the basis of the view that people with an intellectual disability should not be allowed to reproduce in case their offspring were also intellectually disabled. In most cases this procedure was performed without the girl’s knowledge or consent. There are many stories of mildly intellectually disabled women trying to conceive in adulthood only to find that they were sterilised when they were in their early teens.

By the 1970s eugenics was seriously questioned in the context of increased awareness about the right to reproduction and bodily integrity and the rights of people with a disability generally. In the early 1980s various State governments commissioned reports that recommended that sterilisations should never occur for eugenic reasons.

Re Marion [High Court 1992]

In 1992, an application was made to the High Court on appeal from the Family Court in relation to an intellectually disabled teenager. The application was for non-therapeutic surgical sterilisation in order to manage menstruation and prevent pregnancy. The case became know as Re Marion.

In that case, the High Court found that fundamental questions of human rights, such as the right to reproduce, should be decided by the courts, rather than by parents, carers, or medical practitioners. In particular, the Court found that only the Family Court should be able to make decisions about whether or not to consent to a non-therapeutic surgical sterilisation of a child with an intellectual disability.

The Re Marion decision was made in the context of concerns about parents, carers and medical staff who were seeking non-therapeutic surgical sterilisation which may not have been in the best interests of the child. For example, many children with intellectual disabilities require a high level of care. Sterilisation is often seen as a permanent solution to issues surrounding the management of menstruation and contraception, but it may not be in the best interests of the child.

Human Rights and Equal Opportunity Commission Report on the Sterilisation of Minors

In 1997 the Human Rights and Equal Opportunity Commission (HREOC) released a Report on sterilisation of girls and young women which argued that there is substantial anecdotal information from various community sectors, and from government statutory agencies, that unlawful sterilisations continue to occur in the absence of medical need, such as diseases of the reproductive tract.

In an updated 2001 Report on the same subject, HREOC suggested that the most appropriate model for reform in this context would be for all States to confer jurisdiction upon their guardianship tribunals. The bases for this conclusion were as follows:

  1. Members of guardianship tribunals have greater experience, and therefore expertise, than the Family Court in dealing with the particular problems of disabled persons, which would equip them to deal with the needs of disabled minors;
  2. Guardianship tribunals adopt a more inquisitorial and less formal approach to matters, as compared with the more formal, adversarial nature of court proceedings;
  3. Guardianship tribunals take a multi-disciplinary approach to the decision-making process;
  4. Guardianship tribunals do not require legal representation (unlike the Family Court);
  5. There are no fees imposed in proceedings before guardianship tribunals (unlike the Family Court); and
  6. Guardianship tribunals have close links with local communities and providers of services to children with disabilities and their families (unlike the Family Court).

The Report also supported the development of uniform national standards prescribing the circumstances in which minors may be sterilised.

Current legal position

The current legal position varies from jurisdiction to jurisdiction. In Western Australia, Victoria, and the Northern Territory, the Family Court and Federal Magistrates Service have exclusive jurisdiction to decide on sterilisation matters as set out in Re Marion.

In addition, New South Wales, South Australia, Queensland and Tasmania have conferred concurrent jurisdiction with regard to sterilisation decisions on their respective Guardianship Tribunal, Guardianship Board, Guardianship and Administration Tribunal and Guardianship and Administration Board.

Further, each State and Territory has a body, such as the Victorian Office of the Public Advocate, which acts on behalf of and advocates for, people with a decision-making disability. These bodies play an important role in relation to support and education for families of minors with a decision-making disability who are considering making an application to a court or tribunal for authorisation for sterilisation. These bodies are also in a position to act as an advocate for the best interests of the child where appropriate.

It is noted that the Northern Territory does not currently have a board or tribunal that is authorised to make decisions in relation to these matters. Rather, these matters are dealt with by the Magistrate’s Court. To assist the Magistrate’s Court, the Northern Territory Adult Guardianship Act establishes a Guardianship Panel, which examines these matters and makes recommendations to the Magistrates Court. Consequently, adoption of any model Bill and Guidelines may be an issue which needs to be resolved by the Northern Territory Government. It is noted that the substitute decision-making legislation, including proposals in relation to the establishment of a guardianship board or tribunal, is currently being conducted by the Northern Territory Government. It is anticipated that a discussion paper will be released on this matter during the first half of 2004.

Australian Guardianship and Administration Committee Guidelines 2003

The Australian Guardianship and Administration Committee (AGAC) is a national body consisting of representatives from all relevant State and Territory agencies associated with the guardianship and administration jurisdiction. The functions of the Committee include developing consistent practices between the States and Territories, advising governments on issues relevant to guardianship and administration, and encouraging dialogue at a national level which enhances quality decision making, client focussed outcomes, and promotes the fundamental principles of substitute decision making.

In September 2003 the Committee finalised a Protocol for Special Medical Procedures (Sterilisation) in relation to decisions about the authorisation of the sterilisation of a person with a decision-making disability. The Protocol is based on an earlier Protocol which provided guidance on the sterilisation of adults with a decision-making disability, but the current version of the Protocol also encompasses decisions about sterilisation of minors. A copy of the Protocol is at Attachment A.

Much of the Protocol is devoted to procedural issues such as pre-hearing directions and the content of an application. However, the Protocol also includes some very helpful decision-making principles, guidelines about when sterilisation will be appropriate, and the capacity of the adult or child to make their own decisions or to have input into the questions before the Board or Tribunal.

The decision-making principles set out at page 6 of the Protocol include the following:

  1. People with a decision-making disability have the same human rights as all other people;
  2. People with a decision-making disability have the right to individual respect and autonomy; and
  3. The wishes of the person are to be respected with regard to any decision in relation to sterilisation.

There are, of course, other principles set out in State and Territory legislation and in case law. In relation to adults, for example, in the ACT, the Guardianship and Administration of Property Act sets out a list of principles to be followed by decision-makers in considering “prescribed medical procedures” (which is defined to include sterilisation). This Act requires that any decision in relation to such a medical procedure must be made in the best interests of the person. The person’s best interests are to be determined by having regard to matters including the wishes of the person, in so far as they can be ascertained; what would happen if the procedure were not authorised; whether any alternative treatments are available; and whether the procedure could reasonably be postponed because better treatments may become available in future.

QUESTIONS:

  • Should the decision-making principles be based on the AGAC principles?
  • Should the principles be set out in the Bill or the Guidelines?

A note about language
It is noted that the language used in the AGAC Protocol differs from that used at common law and in some State and Territory guardianship and administration legislation. For example, common law refers to “intellectual disability” while the Protocol refers to lack of “capacity” and the majority of guardianship and administration legislation refers to “decision-making disability”. While this paper refers to all of these terms it is noted that consistent language will need to be used in relation to the core principles outlined in the Bill.

The AGAC Protocol refers to decisions about sterilisation in respect of both children and adults. While the term ‘capacity’ is not usually used in relation to children (children are generally not considered to have legal capacity until they are between 16 and 18 years of age) it is noted that ‘capacity’ is used in this context with reference to the ability of the child to understand and manage their reproductive health.


Issues

Sterilisation of minors with a decision-making disability is a multifaceted and sensitive issue. “Sterilisation” is defined in the AGAC Protocol to mean a “surgical intervention that results either directly or indirectly in the termination of an individuals capacity to reproduce”. In turn, the AGAC Protocol defines a “sterilisation procedure” to mean those “medical interventions which are known or are reasonably likely in all the circumstances, to cause sterilisation whether or not that is the purpose for which they are carried out.”

“Non-therapeutic sterilisation” refers to sterilisation which is performed for reasons other than to treat a medical condition or disease. Non-therapeutic sterilisation is an extreme solution to concerns about menstrual management and pregnancy in intellectually disabled minors. According to the High Court, sterilisation must be a measure of last resort (Re Marion). That is, all other methods of managing menstruation and contraception must be fully explored and found to be ineffective or inadequate before sterilisation is contemplated.

It is noted that this paper focuses on the non-therapeutic sterilisation of female minors. While the non-therapeutic sterilisation of male minors is also an issue, anecdotal evidence strongly suggests that sterilisation of female minors is more commonly sought on the basis that it is associated with issues such as menstruation and unplanned pregnancy.

It is important to consider questions such as why applicants are seeking non-therapeutic sterilisation of children, such as the increased burden menstrual management, contraception and potential unplanned pregnancy place on already heavily burdened families. It is clear that many parents are coping with a difficult situation with inadequate support.

Many women with decision-making disabilities are able to cope with menstrual management on their own, or at least learn to live with it with a little assistance from other people. Further, if sterilisation is being sought as a method of dealing with menstrual irregularity and mood swings, it is notable that a young woman going through puberty may be experiencing hormonal fluctuations which are likely to stabilise over time.

It is also important to consider the risks inherent in sterilisation at a young age. For example, the increased risk of early onset menopause, decreased bone density, cardiovascular disease and thyroid disease.

It is noted that the argument is often made that sterilisation is necessary to prevent pregnancy in young women with disabilities who are being sexually abused on the basis that young women with an intellectual disability are at a high risk of sexual abuse. This increased risk is attributed to a variety of factors, including impaired ability to communicate and lack of understanding of what is happening to them.

In some cases, the Family Court has approved sterilisation on the basis of the risk of sexual abuse and pregnancy. However, as Brennan J in Re Marion stated, sterilisation should not be used to lighten the burden of the duty to protect intellectually disabled people from all kinds of abuse, much less to allow for their neglect. It is important to separate these issues: sterilisation in no way addresses the real problem of sexual abuse.

Finally, it must be clear that the primary aim of legislation in this area is to protect the human rights of minors with a decision-making disability.


Framework

What do we hope to achieve?

Ministers have agreed that in order to address the issue of unauthorised non-therapeutic sterilisation, it is necessary to progress draft model legislation and Guidelines for the authorisation of non-therapeutic sterilisation of minors and to confer jurisdiction on State and Territory guardianship boards and tribunals for these decisions. It is acknowledged that due to lack of data it is difficult to ascertain to what extent unauthorised sterilisation is taking place from jurisdiction to jurisdiction or even if it is taking place. However, model legislation conferring jurisdiction on State and Territory guardianship boards and tribunals is useful in terms of access to justice, consistent national laws and assisting in minimising the risk of unauthorised sterilisations occurring.

A model Bill and Guidelines would need to encompass a number of issues, which are set out in some detail later in this paper. For example:

  1. To which group of minors would the legislation apply in terms of age and impairment?
  2. How should non-therapeutic sterilisation be defined?
  3. What evidentiary and factual tests should the legislation impose? Examples of relevant tests include the ‘best interests’ test and the ‘but for’ test.
  4. What medical evidence requirements, if any, should be imposed?
  5. Should criminal penalties be imposed for the performance of an unauthorised sterilisation? If so, what penalty should be imposed?
  6. Should procedural requirements be included in the model Bill?

Some of these issues would need to be included in the Bill and some in the Guidelines. Further, some of these issues will need to be agreed by each State and Territory whereas some points will not require complete uniformity.

Jurisdiction

As agreed by SCAG Ministers, any jurisdiction which is conferred on State and Territory guardianship boards and tribunals would need to operate concurrently with the jurisdiction of the Family Court and the Federal Magistrates Service in this area.

In its Report on Consent to Sterilisation of Minors of October 1994, the WA Law Reform Commission considered the consequences of overlapping Commonwealth and State/Territory jurisdiction. The Commission concluded that, in a case where the Commonwealth enacted legislation under which the Family Court retained non-exclusive jurisdiction in sterilisation matters, the benefits of being able to have matters determined by a guardianship and administration board or tribunal, rather than in formal court proceedings, outweighed the potential problems of overlapping jurisdiction.

One issue with regard to overlapping jurisdiction is that the Family Court may over-ride the decision of a State or Territory tribunal or board, which may lead to applicants who are denied at State level making a subsequent, separate application to the Family Court. This could result in higher personal and financial costs. It is also undesirable to allow ‘forum shopping’.

Despite these issues in relation to overlapping jurisdiction, it is important that the Family Court and the Federal Magistrates Service retain jurisdiction to authorise sterilisation procedures in view of their welfare jurisdiction, and their jurisdiction in custody and guardianship matters generally.

It is noted that the Family Court has previously expressed the view that having concurrent or overlapping jurisdiction is not appropriate. The Court has expressed concern that concurrent jurisdiction is likely to lead to a fragmented approach across the country and encourage forum shopping. The Court takes the view that it is the most appropriate forum for determining such matters.

By way of an example of how issues with regard to overlapping jurisdiction are managed in practice, the Family Court Registry located in Tasmania has recently developed protocols with the Tasmanian Guardianship and Administration Board in relation to sterilisation matters which have already been heard before the Tribunal. The purpose of the protocols is to increase information sharing and improve consistency in the hearing of matters which will ultimately be heard in both forums. The Protocol applies only in the early stages of handling an application and sets up a commitment for the Family Court to notify the Guardianship and Administration Board of the receipt of an application for authorisation of sterilisation and vice versa. In practice, if an application were made in both places there would be a discussion between the Board and the Family Court Registrar to decide where it should be heard first with the other matter being adjourned. The Protocol is also important in that it explicitly involves other parties such as the Public Guardian, Legal Aid, and Family Planning. Development of such protocols in other jurisdictions would significantly reduce the potential disadvantages of creating overlapping jurisdiction between State and Territory guardianship boards and tribunals, and the Family Court.

In Tasmania, the overall incidence of applications is very low and the experience has not been that applications are made both to the Tasmanian Guardianship and Administration Board and the Family Court. However, it is noted that it may be useful to include a provision in the model Bill to prevent applicants from ‘forum shopping’, by making applications in both the State and Federal jurisdictions. For example, the inclusion of a provision which would enable the court or tribunal or board to decline to hear a fresh application within one year of the original application unless special circumstances exist.

On balance, conferring concurrent jurisdiction for sterilisation matters on State and Territory guardianship boards and tribunals would ensure that a comprehensive range of options are available to those people who are seeking, or considering seeking, authorisation for a sterilisation procedure to be performed on their child, or on a child for whom they have guardianship responsibilities.


The Model Bill

Purpose

A key aim of the model Bill would be to provide an alternative forum to the Family Court for applications in relation to sterilisation decisions – that is, the State and Territory guardianship boards or tribunals. In addition, the model Bill would set out principles governing the making of decisions in relation to the authorisation of non-therapeutic surgical sterilisation of minors with a decision-making disability.

The AGAC Protocol sets out a list of aims and objectives (page 5 of the Protocol) which may be of assistance in forming a statement of guiding principles in the Bill. For example; ‘to promote, enhance and protect the best interests of the minor’; ‘to ensure that alternative and less invasive procedures have been tried or considered’; and ‘to promote positive outcomes for the person’.

QUESTION

  • Should guiding principles such as those set out on page 5 of the AGAC Protocol be included in the Bill?

Who Can Make An Application?

One of the matters which the Bill will need to set out, is who may make an application in relation to the sterilisation of a minor with a decision-making disability. In developing the list of people who may make such an application it is useful to examine existing State and Territory legislation in relation to decisions about sterilisation of adults with a decision-making disability. Under most existing legislation in relation to adults with a decision-making disability, the person’s carer or any other person who can show that they have a ‘proper’ interest in the application may apply to the board or tribunal.

In Tasmania, for example, any person who can establish that they have a ‘proper interest’ in the matter may make an application to the Guardianship Board for authorisation of a sterilisation. The advantage of this approach is that it accounts for a number of potential situations, for example, where the child is a ward of the State, the application could be made by the relevant Minister.

In the case of a minor, the AGAC Protocol suggests that one or both parents of the minor, and a person who can show the board or tribunal that they have a ‘sufficient’ or ‘proper’ interest in the matter, may apply.

QUESTIONS

  • Should the model Bill provide that one or both parents of the child or another person who can demonstrate that they have a ‘sufficient’ or ‘proper’ interest in the matter be able to make an application to the board or tribunal in respect of a minor with a decision-making disability?
  • Should there be any other criteria identifying who may make an application under the model Bill?

Definitions

“Child” and “minor”

Most Australian law which relates to children with an intellectual disability either states or implies that a child with an intellectual disability is a person under the age of 18. For example, State and Territory guardianship and administration law applies only to adults with a disability. ‘Adult’ is generally accepted or defined to be a person over the age of 18. For example, the Victorian Guardianship and Administration Act 1986 only applies to people over the age of 18.

In light of the fact that guardianship legislation applies to people over the age of 18, it is proposed that the model Bill should apply to any person under the age of 18 with a decision-making disability. This approach ensures that there is no gap in the prohibition of unauthorised sterilisation between the adult guardianship jurisdiction and the proposed model Bill covering minors.

“Decision-making disability”, “Intellectual disability” and “Capacity”

There are a number of options with regard to defining the group of minors in respect of whom authorisation of a sterilisation may be applied for. For example, the model Bill could apply to a minor with an “intellectual disability”, a “decision-making disability” or “lack of capacity” (please see discussion in relation to language on page 4).

The majority of existing legislation does not specifically define “intellectual disability” or “decision-making disability” with regard to guardianship and administration matters. However, definitions of “intellectual disability” do exist in relation to provision of services for people with a disability.

It is important to note in the context of authorisation of sterilisation that there are a variety of medical problems, including Downs Syndrome, Acquired Brain Injury and many others, which may lead to a parent or carer seeking authorisation for sterilisation. It follows that any definition used should be broad enough to encompass all conditions which result in permanent impairment affecting the ability to make informed decisions.

It is also important to keep in mind the fact that jurisdictions will have developed their own terminology in relation to adults with a decision-making disability and may wish to harmonise the definitions in the model Bill with their existing definitions with respect to adults.

Option 1 is to state that the Bill applies to minors who do not have, and are not reasonably expected to acquire, capacity to make their own decisions in relation to their reproductive health. An example of a definition of capacity can be taken from the AGAC Protocol, which states that: ‘Capacity’ means a person is capable of –

  1. Understanding the nature and effect of decisions about the matter in question – in this case, sterilisation;
  2. Freely and voluntarily making decisions about the matter; and
  3. Communicating the decisions in some way.

The advantage of this definition is that it applies to any sort of disability which may cause a person to be unable to make decisions about their reproductive health and focuses on the individual rather than making generalisations such as “this person has an intellectual impairment, therefore the board or tribunal may consider sterilisation”. The disadvantage is that ‘capacity’ is usually used to refer to adults – as a general principle, children are not considered to have ‘legal capacity’ until they reach a certain age and therefore, the use of the term in the proposed model Bill may be confusing to some readers.

It is noted that the Tasmanian legislation adopts the ‘capacity’ approach Tasmanian officers report that it works well in practice.

Option 2: is to use a term such as “intellectual impairment” or “decision-making disability” without defining the term in detail. Instead, general principles could be applied, such as whether the minor’s level of functioning is likely to improve in the foreseeable future and whether the disability is such that the minor is unable to understand sexual and reproductive functioning and management.

The advantage of this approach is that it is flexible and accounts for all disabilities which may cause a minor to be unable to cope with reproductive health issues and it covers any minor with respect to whom a parent or carer may wish to apply for authorisation of sterilisation.

The new Queensland Legislation has incorporated this approach. Queensland’s new provisions are clear on which children are potentially caught by the Tribunal’s new jurisdiction.

The Queensland Act provides that the Tribunal may consent to the sterilisation of a child with impairment. The Act broadly defines impairment in relation to a child as a cognitive, intellectual, neurological, or psychiatric impairment. The Act then provides that the Tribunal may consent to a sterilisation only if the Tribunal is satisfied that the sterilisation is in the best interests of the child. A component of this term further reduces the group of children that can be sterilised to those who are severely intellectually disabled and unlikely to have capacity (as defined in relation to adults in the Act) when they reach adulthood.

QUESTIONS

  • Which of the above options is the most appropriate?
  • Would another proposal be more appropriate?

“Non-therapeutic sterilisation”

As noted above, for the purposes of this paper sterilisation is a “surgical intervention that results either directly or indirectly in the termination of an individual’s capacity to reproduce”.

It should be noted that the interpretation of what constitutes a ‘therapeutic’ sterilisation in practice often includes sterilisation which is said to be in the best interests of the child’s mental health. For example, it may be said that the sterilisation is being performed on the basis that menstruation so upsets the child that removing it permanently would be ‘therapeutic’ for the child. On this basis it may be appropriate that the model Bill require that any sterilisation which is performed for reasons other than to correct a life threatening physical condition must be authorised by the Board or Tribunal.

State and Territory guardianship and administration legislation refers to sterilisation as one of those procedures, under the umbrella term “special treatment” or “special medical treatment” which have very significant human rights implications, such as sterilisation, termination of pregnancy, experimental medical procedures and donation of non-regenerative body tissue. Because of the implications of these procedures, only a tribunal, board or court may consent to these procedures being carried out.

Option 1:is to define a sterilisation procedure not in terms of the procedure itself, but in terms of the resulting sterilisation. For example, the Tasmanian Guardianship and Administration Act (which applies to both adults and minors in relation to “special treatment”), defines “special treatment” to include:

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.

The advantage of Option 1 is that it is clear and simple. Tasmanian officers report that this approach works well in practice. However, if Option 1 were preferred, it would be necessary to include an additional provision exempting certain types of procedures from the prohibition on sterilisation. For example, such a provision is used in the Tasmanian Guardianship and Administration Act, as follows:

Medical or dental treatment may be carried out on a person to whom this Part applies without consent given in accordance with this Division if the medical practitioner or dentist carrying out or supervising the treatment considers the treatment is necessary, as a matter of urgency –

  • (a) to save the person’s life; or
  • (b) to prevent serious damage to the person’s health; or
  • (c) except in the case of special treatment, to prevent the person from suffering or continuing to suffer significant pain or distress.

Option 2: is to define sterilisation in general terms, as in the first part of Option 1, but to except certain procedures and include examples. For example, the NSW Children and Young Persons (Care and Protection) Act, defines “special medical treatment” to include:

(a) 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, not being medical treatment:

  • i. that is intended to remediate a life-threatening condition, and
  • ii. from which permanent infertility, or the likelihood of permanent infertility, is an unwanted consequence, or

(b) any medical treatment in the nature of a vasectomy or tubal occlusion.

The advantage of Option 2 is that it is clear that procedures are permissible if they are necessary to save the life of the minor or if they include sterilisation as a risk of the procedure where they are not performed specifically to cause sterilisation.

QUESTION

  • Should the proposed model legislation adopt Option 1, Option 2 or another option?

Tests

There are three general tests applied by the various courts and tribunals in order to make a decision about whether or not a non-therapeutic sterilisation should be authorised, as follows:

Option 1- the “but for” test: the “but for” test is applied, for example, by the NSW Guardianship Tribunal. In this test, the decision-maker asks whether, ‘but for’, the minor’s decision-making disability, authorisation of non-therapeutic sterilisation would be appropriate. If not, then compelling evidence must be presented to the tribunal before the sterilisation will be approved. On this test, there is essentially a rebuttable presumption that no minor with a decision-making disability should undergo non-therapeutic sterilisation.

This test has the advantage of requiring the decision-making body to consider the whole person, rather than focussing on the person’s disability. However, one of the issues that should be considered with regard to this test is that it requires a very high standard. The advantage of such a high standard is that it will prevent the authorisation of sterilisation in all but the most serious cases. The disadvantage is that it may result in applications which do have merit being rejected.

Option 2 – the “last resort” test. This is the test used by the Family Court and involves a consideration of whether all other options, such as hormone treatment, contraception and education (for both parent and child), have been fully explored. This is also the test set out in the AGAC Protocol (page 10).

The advantage of this test is that it requires the applicant to explore all other options before sterilisation is considered, thus providing the minor with the maximum chance of avoiding surgery. However, there is some question about the application of the test. For example, the 1997 HREOC Report on Sterilisation of Girls and Young Women stated that the Family Court had approved several applications for sterilisation which concerned children who had not yet begun to menstruate raising questions as to how the parties could have shown that sterilisation was a ‘last resort’.

Option 3 – the “best interests” test. This test is applied widely in jurisdictions that deal with minor’s interests and the interests of persons with a disability generally (for example, the Family Court and various guardianship boards and tribunals).

This test is fundamental in legal areas dealing both with minors and adults with a decision-making disability. The advantage of this test is that it separates the interests of the carer from the interests of the child. This is particularly relevant in terms of applications for sterilisation where the applicant is the carer of the child and may be motivated to make the application by the overwhelmingly difficult issues raised by caring for the minor. In the context of such emotional issues, it is particularly valuable to require that the best interests of the child will be paramount in decisions made about authorisation of sterilisation.

It is noted that the Tasmanian Guardianship and Administration Board uses various tests, including asking which treatment option is the least restrictive for the minor in question, the best interests of the minor and person’s wishes, as equal and competing tests. This approach provides the Board with considerable flexibility in reaching a decision. While the ‘last resort’ test is not specified in the Tasmanian Guardianship and Administration Act, the tests above when considered globally have a similar effect.

QUESTIONS

  • Which test, if any, should be used?
  • Should more than one of the above tests be used? For example, should the last resort test be used with the best interests test as the over-riding principle?

A further issue is whether the test or tests should be set out in detail in the legislation or whether there should merely be a statement of intention. For example, the Family Law Act simply requires that in decisions in relation to residence and access, the “best interests of the child shall be paramount”. On the other hand, the new Queensland Act sets out the elements of the best interests test in detail, providing a list of matters to which the Tribunal must have regard in making its decision. The relevant section sets out matters which the Board must be satisfied of, for example, that the child is treated in such a way as to respect their privacy and dignity; that the views of the child and the primary carer of the child, are taken into account where possible and that the Tribunal has taken into account whether any alternative forms of health care are available and suitable for the child.

The advantage of setting the test out in detail is that it would prevent misapplication (for example, finding the ‘last resort’ test to be satisfied even though the minor has not yet begun to menstruate).

QUESTIONS

  • Should the test/s be set out in detail?
  • Should the test/s be set out/stated in the legislation or Guidelines?

Procedural Matters

The primary question in relation to procedural matters is whether they should be contained in the model Bill or alternatively, whether they should simply be left to each jurisdiction to determine.

The advantage of the latter option is that States and Territories will currently have in place procedures which govern the practice of their board or tribunal and model provisions may be difficult to fit within this framework. It is noted that these matters are handled very differently from jurisdiction to jurisdiction and that therefore, setting out these matters in either the Bill or the Guidelines may be very difficult. In addition, it is important to note that procedural rules and practices will have evolved in individual jurisdictions in response to a number of individual factors including the size of the jurisdiction and the types of matters commonly arising in that jurisdiction.

However, there may be a view that some procedural matters, such as evidentiary requirements, are specific to the guardianship jurisdiction and should therefore be set out in the Bill or Guidelines.

QUESTIONS

  • Should the model Bill or Guidelines deal with procedural matters or should these matters be left to individual jurisdictions?
  • Should the model Bill or Guidelines set out a statement of principle in relation to procedural matters. For example, a statement that the board or tribunal must be able to access any information relevant to making an informed decision?

Powers of inquiry

Many State and Territory tribunals currently have the power to request information from relevant sources and to order an investigation into matters the tribunal is taking into consideration in guardianship matters. For example, the Victorian Civil and Administrative Tribunal may order the Office of the Public Advocate to undertake an investigation in relation to guardianship and administration matters concerning adults with a decision-making disability.

In relation to decisions about the sterilisation of minors, the advantage of giving the board or tribunal power to require materials and to order an investigation is that the court or tribunal may seek to inform itself both in terms of general information about disability and reproductive health, and specific evidence in relation to the individual case.

QUESTIONS

  • Should the model Bill contain a provision enabling the board or tribunal to compel a person to provide relevant information relating to a sterilisation matter?
  • Should the model Bill contain a provision empowering the board or tribunal to order an investigation in sterilisation matters?
  • If so, who should carry out the investigation? For example, should it be the Office of the Public Advocate or Public Guardian?
  • What would be the resourcing implications of such a provision?

What medical evidence would be required?

The presentation of medical evidence to the board or tribunal in relation to a decision about the authorisation of sterilisation of a minor would be necessary to properly inform the board or tribunal’s decision. Such evidence should be designed to assist the board or tribunal in forming a view about the following matters:

  1. The child’s general and reproductive health;
  2. The nature of the child’s disability;
  3. Methods of menstrual management and birth control already tried and other methods which may be available;
  4. The likely effect of the procedure in terms of fertility and other effects; and
  5. Any other relevant matters.

It is noted that the Queensland Act sets out in detail the items which must be included in the medical practitioners report, such as information about the child’s disability, whether the disability is likely to be permanent and the reasons for proposed sterilisation. If it is preferred that these matters be set out in detail in the proposed model Bill the Queensland Act would be useful in formulating these provisions.

A range of medical professionals, carers and other people could be called upon to give evidence in relation to these matters. However, in the interests of objectivity and expertise, at least some of the evidence should be required to be presented by a specialist gynaecologist/obstetrician.

It is noted that the matters set out above are matters which any competent tribunal or board would take into account as a matter of course and that therefore, these matters may not need to be set out in detail in the proposed model Bill.

It is also noted that there are significant costs involved for applicants in obtaining reports from medical specialists to be used as evidence and that these costs may act as a deterrent for applicants seeking lawful authorisation of sterilisation. One possible approach to this issue would be to have a medical expert such as a paediatrician sit on the tribunal or board for these types of decisions. However, this may be a matter which is more appropriately addressed by individual jurisdictions rather than being included in the proposed model Bill on the basis of resources and established operating procedures in each jurisdiction.

QUESTIONS FOR OFFICERS

  • Should these criteria be contained in the Bill or in the Guidelines?
  • Is complete uniformity required on the issue of evidence or would it be more appropriate to allow each jurisdiction to develop its own provisions in this regard?

Child’s Representative

Under the Commonwealth family law system there are currently no statutory grounds for the appointment of child representatives in family law proceedings. Rather, appointments may be ordered by the Court where the Court deems this to be appropriate. The Family Court recently approved Guidelines for Child Representatives in family law proceedings and there is a question about whether the Family Court’s Guidelines should guide the performance of child representative functions in proceedings involving the sterilisation of children in fora other than the Family Court, including State and Territory Tribunals. Consideration also needs to be given to the implications of requiring the appointment of child representatives in such proceedings.

The Queensland Act specifically requires that a child’s representative must be appointed in sterilisation matters. To comply with international child’s rights law, to which Australia is a party, Queensland’s legislation provides that the children’s representative must be legally qualified. In matters where the Family Court is to approve the sterilisation of a child, that child needs to be legally represented. In developing the Queensland Act, Queensland was mindful that a child with an intellectual disability should be accorded the same right to representation before the Tribunal. Also, in view of the irreversible effect of sterilisation, Queensland is of the view that it is imperative that the child is legally represented in the hearing.

Clearly, it is important that the child’s interests be independently represented in a hearing in relation to sterilisation. However, there is a question as to how this is best achieved. For example, it is noted that the role of the tribunal or board will also be to protect those interests.

Because each jurisdiction will have its own existing mechanisms to ensure that decisions are made having regard to the relevant factors, it may not be necessary for the model Bill to require the appointment of a children’s representative. However, it is recognised that because of the vulnerability of intellectually disabled children, it is important to ensure that independent support is available to the child. This may take the form of advice or intervention by an advocate from a body such as the Office of the Public Advocate or other advocacy body.

QUESTIONS

  • Is uniformity required amongst States and Territories with regard to a child’s representative?
  • If so, should the Bill require a child’s representative to be appointed in sterilisation cases?
  • Alternatively, or additionally, should the Bill require that an advocate or advisor from the Office of the Public Advocate, the board or tribunal or other relevant organisation assess on a case-by-case basis whether the child needs separate representation?
  • What resource implications would these requirements have?

Criminal Offences

There is an argument that because of the sensitivity and conflicting interests inherent in the area of unauthorised sterilisation, imposing a criminal offence is not appropriate. However, the protection of the fundamental human rights of minors with a decision-making disability and the serious consequences of unnecessary sterilisation may necessitate the creation of a criminal offence. It is acknowledged that policing and enforcement will still be an issue with regard to unauthorised sterilisation.

Option 1 is to include a specific criminal offence in the model Bill for the performance of unauthorised sterilisations. This is the approach adopted in NSW and South Australia.

The advantage of having a specific criminal offence for performance of an unauthorised sterilisation in State and Territory legislation is that this is a clear statement of the seriousness of the offence. It is also more appropriate in the sense that the offence would not be a general criminal offence and therefore may not be best placed in general criminal legislation. Such an offence provision would also make enforcement easier than it is under the common law.

Option 2 is to provide that the criminal law of the State or Territory applies to any unauthorised sterilisation procedure. This is the approach adopted in Tasmania, where the relevant legislation makes it clear that the Tasmanian Criminal Code applies to any unauthorised sterilisation procedure. While this approach makes it clear that unauthorised sterilisation is a criminal offence it may not be obvious to a person reading the Bill what the associated penalty is.

In either case it may be appropriate to create a defence such as that the medical practitioner reasonably believed that the sterilisation procedure was necessary in order to treat a life threatening condition.

It is noted that if a criminal offence is to be included in the model Bill, a uniform approach to the process for creating an offence for unauthorised sterilisation may not be necessary. That is, States and Territories should be free to choose the best method for creating the criminal offence according to the operation of the criminal law in their jurisdiction.

Other matters

Elements of the offence
In order to create an offence it is necessary to clearly set out the elements of the offence, such as the intent of the person committing the offence and who may be liable for the offence. For example, there is an argument that the medical practitioner, who should be well informed of his or her legal responsibilities, would be the primary offender, where a parent, for example, would be aiding and abetting in the commission of the crime.

It is noted that the Commonwealth has included the following provision in the Explanatory Note to the Medicare Benefits Schedule:

T8.40 Sterilisation of Minors – Legal Requirements
(i) It is unlawful throughout Australia to conduct a sterilisation procedure on a minor which is not a by-product of surgery appropriately carried out to treat malfunction or disease (eg malignancies of the reproductive tract) unless legal authorisation has been obtained.

(ii) Practitioners are liable to be subject to criminal and civil action if such a sterilisation procedure is performed on a minor (a person under 18 years of age) which is not authorised by the Family Court of Australia or another court or tribunal with jurisdiction to give such authorisation.

(iii) Parents/guardians have no legal authority to consent on behalf of minors to such sterilisation procedures.

(iv) Medicare Benefits are only payable for sterilisation procedures that are clinically relevant professional services as defined in Section 3 (1) of the Health Insurance Act 1973.

The prospect of professional disciplinary sanctions also provide a strong disincentive to the participation by any health professional in an unauthorised sterilisation.

When considering criminal sanctions for parents who arrange an unauthorised sterilisation, it is important to take into account the difficulties faced by parents in these situations and the impact of potential criminal prosecution of the parent on the child.

Penalties
While the mechanism for creating an offence does not necessarily need to be uniform, it is important to aim to achieve penalties for the offence which are as uniform as possible. This is consistent with the principle that the aim of the model Bill is to lead to nationally consistent legislation where residents of each State and Territory can expect that the same laws and penalties will apply, whichever jurisdiction they reside in.

One other option for policing unauthorised sterilisation and for encouraging parents and medical practitioners to seek the approval of the appropriate tribunal or board would be to require that any application for a Medicare rebate in relation to a sterilisation procedure must be accompanied by an order authorising that procedure from a Tribunal or Board or the Family Court.

QUESTIONS

  • Should the model Bill contain a criminal offence?
  • If so, should the nature of the offence and/or penalties be uniform?
  • What should the elements of the proposed offence be?
  • Who should be capable of being liable?

Guidelines

Purpose

While the Bill will clearly set out the decision-making framework and general principles, it is for the Guidelines to set out factors which the board or tribunal should take into account when making decisions in relation to sterilisation and termination of pregnancy.

Because of the sensitive nature of decisions about sterilisation, there is a clear need for flexible and individual responses to the particular circumstances in relation to an application for the non-therapeutic sterilisation of a minor with a decision-making disability.

The advantage of formulating Guidelines upon which boards and tribunals may base their decisions in relation to sterilisation is that the Guidelines will create consistent standards across jurisdictions, ensuring that regardless of which jurisdiction an applicant or minor is resident in, the same basis for the making of decisions with regard to sterilisation will apply.

The advantages of including these factors in the Guidelines is that the Guidelines will be flexible, which is appropriate given the changing nature of medical treatments and developments in guardianship law.

The model Guidelines should strike a balance between factors which must be taken into account in making sterilisation decisions and allowing for flexible and individual responses.

The Full Court of the Family Court set out a range of factors that should be taken into account by a court when considering sterilisation applications (P v P (1995) 19 Fam LR1 (P v P (No 2)). These factors include elements such as the best interests of the child and other matters which should be taken into account in making decisions in relation to surgical non-therapeutic sterilisation. In later cases the Family Court has built on this decision, adding Guidelines about interaction with appropriate organisations such as Legal Aid, Government Departments and disability advocacy services such as the Victorian Office of the Public Advocate.

As noted throughout this paper, the Australian Guardianship and Administration Committee has developed Guidelines for sterilisation decisions with respect to adults with a decision making disability which have been adapted to apply to minors. While the Guidelines focus to some degree on framework and procedural issues, they also set out principles for decision-making and assessing capacity. The Guidelines are at Attachment A for your information.

Legal Status of the Guidelines

One option is to simply distribute the Guidelines to decision-making bodies. While this option would provide the bodies with guidance in relation to making decisions, the Guidelines would have no legal force. The other option is to either attach the Guidelines to the Bill, for example, as a schedule or to include them in regulations. The advantage of the latter options is that the Guidelines would have legal force, however, they would be more difficult to amend.

QUESTIONS

  • What matters should the Guidelines cover?
  • Which elements of the Australian Guardianship and Administration Guidelines are adaptable for use in the model Guidelines for State and Territory guardianship boards and tribunals?
  • What additional matters should be included in the Guidelines?

Finally, given that the Guidelines must be developed from a range of diverse primary material such as case law and academic literature, it is important to develop a process for developing and progressing those Guidelines.


General Matters

Uniformity between the model Bill and the Family Court

An additional issue is whether or to what extent the model Bill and Guidelines should seek to achieve uniformity between the Family Court and the various State and territory tribunals and boards.

QUESTION

  • Are there any additional matters which should be raised in this paper?

ATTACHMENT A – Protocol for Special Medical Procedures (Sterilisation)


Made pursuant to the approval of the Australian Guardianship and Administration Committee (AGAC)
Passed: 2 May 2003
Amended: 30 September 2003
Amended: 25 March 2004


Interpretation:

“Person” – unless otherwise specified, the word “person” means both a child and an adult with a decision-making incapacity.

“Procedure” – as in a sterilisation procedure, includes a procedure or treatment.

“Tribunal” – the word “tribunal” is used in this Protocol as a standard, general identifier to refer to each state and territory body, which has jurisdiction for capacity, guardianship and administration matters. Practitioners and applicants should check the exact name of the relevant body in their state or territory.

1. Background

1.1. In all states and territories of Australia, sterilisation is considered to be such an invasive and irreversible procedure, that where a person cannot give a valid consent to the procedure, an entity such as the Family Court, a state supreme court or guardianship tribunal is the only authority that can provide consent. Further, because of the invasive and irreversible nature of the procedure, the law in all states and territories provides that, unlike many other medical procedures, a person’s normal substitute decision-maker for medical and dental treatment cannot make the decision about sterilisation.

1.2. For adults with impaired decision-making abilities, consent to the procedure was, and is, given or refused by the state or territory tribunals that deal with capacity, guardianship and administration issues.

1.3. For children, the question of sterilisation is a matter for the Family Court of Australia. In addition when this Protocol was first adopted there were 3 state tribunals with this jurisdiction. This has now increased to four. [1]

1.4. To promote consistency between the states and territories, in July 2001, the Attorneys-General of Australia were asked that, in addition to the jurisdiction with respect to adults, all state and territory guardianship tribunals be given jurisdiction to hear applications for the sterilisation of children. This jurisdiction will be concurrent with the Family Court.

1.5. A consequence of bringing child sterilisation into the jurisdiction of each guardianship tribunal was that the Protocol for sterilisation previously adopted by all tribunals [2], only applied to adults. That Protocol therefore required review and amendment.

1.6. This also provided the opportunity to update the Protocol to reflect changes in the law and developments in the area of reproductive technologies.

2. Why a Protocol?

2.1. The term sterilisation is used to mean a surgical intervention that results either directly or indirectly in the termination of an individual’s capacity to reproduce [3].

2.2. In turn, the phrase “sterilisation procedures” or “sterilisation treatments” means those medical interventions which are known, or are reasonably likely in all circumstances, to cause sterilisation whether or not that is the purpose for which they are carried out. Such procedures include endometrial oblation, hysterectomy, tubal ligation and vasectomy.

2.3. The High Court of Australia has highlighted the seriousness and gravity of sterilisation. In the landmark case known as Marion’s Case, [4] the High Court ruled on the law relating to the sterilisation of children, who have profound intellectual handicaps. Its discussion of and enunciation of principles are equally applicable to adults with impaired decision-making capacity.

2.4. The Court noted that the question of sterilisation is particularly difficult because: the person (a child in the case, but equally applicable to adults) lacks the capacity to give consent; the operation involves the removal of a healthy organ; sterilises the person; and, since the person usually requires full-time care, the interests of parents and others are closely involved in the decision.

2.5. For children, the majority of the High Court held that parents do not have the right to give consent to such procedures in the circumstances that arose in that case. Instead, parental power is limited to situations “where sterilisation is an incidental result of surgery performed to cure a disease or correct some malfunction.” [5]

2.6. The reason for the Court’s decision was essentially that the grave risk that would result for the child from an incorrect decision, and, the significant risk of making the wrong decision as to whether the procedure would be in the child’s best interest, required the decision to be made by an independent and objective body.

These concerns, as well as the principles enunciated in Marion’s Case, also apply to adults with impaired decision-making capacity.

2.7. Accordingly, this Protocol is designed to assist the various Australian guardianship tribunals in exercising this power, and to promote consistency across the jurisdictions when dealing with an application for the sterilisation of a person.

2.8. Importantly, the Protocol should also assist applicants, potential applicants, relevant professionals and members of the public in understanding the decision-making process and what is required of them in bringing, or objecting to an application to sterilise a person.

3. Aims and objectives

3.1. Procedurally, the Protocol aims to:

(a) Set out the matters to be considered by tribunals hearing cases for the proposed sterilisation of persons.
(b) Achieve as much consistency as possible between the jurisdictions.
(c) Ensure that the matter proceeds in a timely manner and that all necessary evidence is placed before the tribunal.

3.2. For the person and their carers, the aim of the Protocol is to:

(a) Promote, enhance and protect the best interests of the person.
(b) Promote positive outcomes for the person.
(c) Give the people involved or concerned in the decision an opportunity and forum to raise and discuss all relevant issues.
(d) Ensure that alternative and less invasive procedures have been tried or considered.
(e) Ensure that sterilisation is a last resort, after other options have failed to produce outcomes satisfactory to the person.
(f) Ensure clarification of and delineation between what is in the best interests of the person and what is in the interests of the person’s care giver/s.

4. Decision-making principles

4.1. The tribunal hearing the matter must be guided by the following principles:

(a) Same human rights -The right of all persons to the same basic human rights regardless of a particular person’s capacity.

(b) Individual value and autonomy – A person’s right to respect for his or her human worth and dignity as an individual.

(c) Maximum participation, minimal limitations – a person’s right to participate, to the greatest extent practicable, in decisions affecting the person’s life.

(d) The expressed wishes of the person to be considered – in so far as the person is capable of expressing a wish.

(e) Encouragement of self-reliance and self management – The importance of encouraging and supporting a person to achieve his or her maximum physical, social, emotional and intellectual potential, and to become as self-reliant as practicable.

(f) The least restrictive alternatives – If there is a choice between a more or less intrusive and permanent form of treatment, the less intrusive way should be adopted unless it is, or would be, unsatisfactory.

(g) Maintenance of existing supportive relationships – Considering the views of and impact on the decision for the person’s family and/or carers.

(h) Maintenance of cultural environment and values – The importance of maintaining a person’s cultural environment and set of values, including any religious beliefs held by the person and/or the person’s parents or care givers.

5. The Protocol

Phase 1: The Application

1a. Who can apply?

5.1. Ordinarily, for a child, one or both parents of the child or a medical practitioner would bring the application. However, an application may also be brought by a person who can demonstrate to the tribunal that they have an interest in the care, welfare and development of the child.

5.2. For adults, an application would ordinarily be brought by the adult’s primary carer/s, which could include parents or other family members or a medical practitioner. Applications may also be brought by any person, who can demonstrate to the tribunal that they have an interest in the care, welfare and development of the adult.

1b. Bringing an application

5.3. If the applicant:

(a) has obtained medical advice concluding that the person lacks capacity to give consent to the procedure; and
(b) has explored alternative and less invasive procedures, and forms the view that sterilisation is in the person’s best interests,

then the person/s may bring an application to the tribunal.

However, it should be noted, that despite the applicant’s information about the person’s capacity and exploration of treatment options, these matters are ultimately for the tribunal to consider and decide.

5.4. The application and accompanying documentation must be in the tribunal’s approved form – a prospective applicant should contact the relevant tribunal registry in their state or territory for a copy of the relevant form/s.

1c. The content of the application

5.5. The tribunal will require information about the person, the person’s parents and carers, his/her social environment, and his/her medical background.

5.6. In addition, the applicant will be required to provide reports by medical, psychological or other experts, concerning:

(a) the person’s capacity, including:

    • (i) whether the person is capable of making his or her own decision about undergoing the procedure; and

 

  • (ii) where the person is a child, whether the child is likely to develop sufficiently to be able to make an informed judgment about undergoing the procedure within the time in which the procedure should be carried out, or within the foreseeable future; and

 

(b) the reproductive health of the person including any difficulties in relation to menstruation; and

(c) the exact nature and purpose of the proposed procedure; and

(d) that the proposed procedure is necessary for the welfare of the person, and meets any tests set down in the legislation of the particular state or territory (refer Schedule 3); and

(e) why alternative and less invasive procedures would be, or have proven to be, inadequate; and

(f) the likely long term social and psychological effects of the procedure on the person; and

(g) whether scientific or medical advances are reasonably anticipated within the foreseeable future that will make possible either improvement in the person’s condition or alternative and less drastic sterilisation procedures; and

(h) any other relevant considerations or any other information required by the relevant state legislation.

5.7. The tribunal may also obtain independent medical reports concerning the above matters.

Phase 2: Once the Application is Received by the Tribunal

2a. The first threshold question – does the person have capacity?

5.8. After receiving an application for the proposed sterilisation of an adult, the tribunal must first determine whether the adult can consent to his or her own treatment.

5.9. The assessment of a person’s capacity – adult or child – to consent to or to refuse medical or dental treatment is a matter of clinical judgement subject to legal requirements. The opinions of doctors as to a person’s capacity are of great assistance, but the question of competence is ultimately a decision for the Tribunal.

5.10. To give consent to a procedure, an adult must have capacity to do so. The presumption that an adult has the mental capacity to consent or to refuse consent is a strong one, is not easily displaced and must be considered individually on the merits and facts of each specific case.

5.11 “Capacity” means a person is capable of [6] –

(a) understanding the nature and effect of decisions about the matter in question – in this case, sterilisation; and
(b) freely and voluntarily making decisions about the matter; and
(c) communicating the decisions in some way.

5.12. For children, it was accepted by the High Court in Marion’s Case, that a child’s capacity and thus ability to give valid consent will increase as the child’s maturity develops. In ordinary circumstances, the older the child, the more likely she or he will have capacity for the matter and be capable of giving valid consent. However, in deciding whether a child can consent to a special medical procedure such as sterilisation, the child’s capacity and maturity must be weighed against the seriousness of the treatment proposed.

5.13. Neither a child nor an adult will be able to give valid consent to a sterilisation procedure if she or he is unable to understand the nature of the treatment, and also unable to attach appropriate significance to the risks and need for treatment.

5.14. It may also be relevant to consider if the person is, or may be, affected by the differing views of his or her carers such that the person is caught in the dispute and may be influenced by the wishes, views or opinions of others.

5.15. When considering this first threshold issue, the tribunal may:

(a) Obtain an independent assessment of the person’s capacity to give informed consent for the procedure at the time of the hearing and whether the person is likely to sufficiently develop such abilities in the foreseeable future.
(b) Hold a preliminary hearing to decide the question of capacity.

2b. The second threshold question – is sterilisation required?

5.16. The significant developments in the area of reproductive technology, including contraception and menstruation management, mean that there are a range of treatments and procedures available, all of which are less invasive and less permanent than sterilisation.

5.17. Accordingly, before considering sterilisation, all other alterative treatments should be considered, and, if appropriate, tried, before bringing an application for sterilisation.

5.18. Consequently, any person bringing an application to a tribunal for the sterilisation of a person must consider alternative and less invasive procedures and address this in their material; refer 5.6 above.

5.19. Depending on the content of the application and supporting material, the tribunal may also obtain an independent assessment of the alternative treatments or procedures available in the circumstances.

5.20. If the tribunal becomes satisfied that other less invasive options should be considered, the tribunal will notify the applicant and may require they consider such options and then provide further information to the tribunal about the utility or outcome of such alternative treatments or procedures.

Phase 3: Determination

3a. Pre-hearing Directions

5.21. When the tribunal is satisfied on the two threshold questions, the tribunal may give any or all of the following directions:

(a) make the person a party and appoint a next friend or legal guardian for the person;
(b) appoint a separate representative for the adult or Child’s Representative for a child;
(c) join any other appropriate person as a respondent (for example, a parent if they are not the applicant);
(d) cause the application and accompanying reports/material to be served on any other person/s, as the Tribunal thinks proper;
(e) identify and advise any or all parties in writing of any further information required, and the date by which the additional material is to be filed with the tribunal;
(f) mindful of any urgency, fix a date for the hearing of the application.

5.22. Once the date has been fixed, the tribunal will issue a Notice of Hearing to all parties.

3b. The hearing

5.23. The tribunal will conduct the hearing according to its usual practice and procedure.

5.24. In making its decision, the tribunal will be guided by the decision-making principles (refer 4 above), and the specific facts and circumstances relevant to those principles as contained in the application, evidence and reports from health providers (refer 5.5 and 5.6 above).

5.25. The standard of proof is not necessarily expressed in the same way in all jurisdictions, but the gravity of the matter must be taken into account, thereby affecting the standard no matter how expressed [7].

5.26. Where there is any conflict between this Protocol and the laws of any state or territory laws, the laws of the state or territory will prevail.

Schedule 1 – Comparative Definitions of Sterilisation

JURISDICTION: QUEENSLAND

Definition

(1) “Sterilisation” is health care of an adult who is, or is reasonably likely to be, fertile that is intended, or reasonably likely, to make the adult, or ensure the adult is, permanently infertile.

Examples of sterilisation-
Endometrial oblation, hysterectomy, tubal ligation and vasectomy.

(2) Sterilisation does not include health care primarily to treat organic malfunction or disease of the adult.”

Source:
Sch 2, s.9 Guardianship and Administration Act 2000 [re adults]

Definition

(1) “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.

Examples of sterilisation-
Endometrial oblation, hysterectomy, tubal ligation and vasectomy.

(2) 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.

Example-
If the child has cancer affecting the reproductive system and, without the health care, the cancer is likely to cause serious or irreversible damage to the child’s physical health, the health care is not sterilisation.

Source:
s.80B Guardianship and Administration Act 2000 [re children]

JURISDICTION: NEW SOUTH WALES

Definition

” “special treatment” means:
(a) 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, or

Source:
s.33(1) Guardianship Act 1987

” “special medical treatment” means:
(a) 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, not being medical treatment:

(i) that is intended to remediate a life-threatening condition, and
(ii) from which permanent infertility, or the likelihood of permanent infertility, is an unwanted consequence, or

Source:
s.175(5) Children and Young Persons (Care and Protection) Act 1998

JURISDICTION: VICTORIA

Definition

” “special procedure” means-
(a) 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;”

Source:
s.3(1) Guardianship and Administration Act 1986

JURISDICTION: SOUTH AUSTRALIA

Definition

“”sterilisation” means any treatment given to a person that results in, or is likely to result in, the person being infertile.”

Source:
s.3, Guardianship and Administration Act 1993

JURISDICTION: WESTERN AUSTRALIA

Definition

“”procedure for the 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;”

Source:
s.56, Guardianship and Administration Act 1990

JURISDICTION: TASMANIA

Definition

” “special treatment” means –
(a) 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;”

Source:
s.3 Guardianship and Administration Act 1995

JURISDICTION: AUSTRALIAN CAPITAL TERRITORY

Definition

“prescribed medical procedure means-
(a) …
(b) reproductive sterilisation; or
(c) a hysterectomy; or
(d) a medical procedure concerned with contraception; ”

Source:
Dictionary, s.2, Guardianship and Management of Property Act 1991.

JURISDICTION: NORTHERN TERRITORY

Definition

“a medical procedure relating to –
(a) contraception; …”

Source:
s.21(4)(b) Adult Guardianship Act 1988

Schedule 2 – Comparative Definitions of Capacity

JURISDICTION: QUEENSLAND

Definition

“capacity”, for a person for a matter, means the person is capable of–
(a) understanding the nature and effect of decisions about the matter; and
(b) freely and voluntarily making decisions about the matter; and
(c) communicating the decisions in some way.”

“impaired capacity”, for a person for a matter, means the person does not have capacity for the matter.”

Source:
Sch 4 Guardianship and Administration Act 2000

the child’s impairment results in a substantial reduction of the child’s capacity for communication, social interaction and learning”

Source:
s.80D(1)(b) Guardianship and Administration Act 2000 [re children]

“impairment” means a cognitive, intellectual, neurological, or psychiatric impairment.

Source:
s.80A Guardianship and Administration Act 2000 [re children]

JURISDICTION: NEW SOUTH WALES

Definition

“…a person is incapable of giving consent to the carrying out of medical or dental treatment if the person:
(a) is incapable of understanding the general nature and effect of the proposed treatment, or
(b) is incapable of indicating whether or not he or she consents or does not consent to the treatment being carried out”

Source:
s.33(2) Guardianship Act 1987

JURISDICTION: VICTORIA

Definition

“…a person is incapable of giving consent to the carrying out of a special procedure or medical or dental treatment if the person-
(a) is incapable of understanding the general nature and effect of the proposed procedure or treatment; or
(b) is incapable of indicating whether or not he or she consents or does not consent to the carrying out of the proposed procedure or treatment”.

Source:
s.36(2) Guardianship and Administration Act 1986

JURISDICTION: SOUTH AUSTRALIA

Definition

“mental incapacity” means the inability of a person to look after his or her own health, safety or welfare or to manage his or her own affairs, as a result of:
(a) any damage to, or any illness, disorder, imperfect or delayed development, impairment or deterioration, of the brain or mind; or
(b) any physical illness or condition that renders the person unable to communicate his or her intentions or wishes in any manner whatsoever;”

“mentally incapacitated person” means a person with a mental incapacity;”

Source:
s3, Guardianship and Administration Act 1993

JURISDICTION: WESTERN AUSTRALIA

Definition

[where the person is]:
“(i) incapable of looking after his own health and safety;
(ii) unable to make reasonable judgments in respect of matters relating to his person; or
(iii) in need of oversight, care or control in the interests of his own health and safety or for the protection of others;”

Source:
s.43(1)(b), Guardianship and Administration Act 1991

JURISDICTION: TASMANIA

Definition

“…a person is incapable of giving consent to the carrying out of medical or dental treatment if the person –
(a) is incapable of understanding the general nature and effect of the proposed treatment; or
(b) is incapable of indicating whether or not her or she consents or does not consent to the carrying out of the treatment.”

Source:
s.36(2) Guardianship and Administration Act 1995

JURISDICTION: AUSTRALIAN CAPITAL TERRITORY

Definition

“For this Act, a person has impaired decision-making ability if the person’s decision-making ability is impaired because of a physical, mental, psychological or intellectual condition or state, whether or not the condition or state is a diagnosable illness.”

Source:
s.6 Guardianship and Management of Property Act 1991

JURISDICTION: NORTHERN TERRITORY

Definition

“…if the Court is satisfied that the represented person understands the nature of the proposed major medical procedure, and is capable of giving or refusing consent to that procedure…”

Source:
s.21(7) Adult Guardianship Act 1988

Schedule 3 – Tests of Necessity of Procedure for Welfare of Person

JURISDICTION: QUEENSLAND

Definition

“(1) The tribunal may consent, for an adult with impaired capacity for the special health matter concerned, to sterilisation of the adult only if the tribunal is satisfied-
(a) one of the following applies-

(i) the sterilisation is medically necessary;
(ii) 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;
(iii) if the adult is female-the adult has problems with menstruation and cessation of menstruation by sterilization 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.

(2) Sterilisation is not medically necessary if the sterilisation is-
(a) for eugenic reasons; [footnote to provision reads: Eugenics is ‘the science of improving the qualities of the human race, especially the careful selection of parents’-Macquarie Dictionary, 3rd edition, 1997.] or
(b) to remove the risk of pregnancy resulting from sexual abuse.

(3) Also, in deciding whether to consent for the adult to a sterilization procedure, the tribunal must take into account-
(a) alternative forms of health care, including other sterilization procedures, available or likely to become available in the foreseeable future; and
(b) 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.”

Source:
s.70 Guardianship and Administration Act 2000 [re adults]

Definition – Queensland cont’d

(1) The sterilisation of a child with an impairment is in the child’s best interests only if-
(a) one or more of the following applies-

(i) the sterilisation is medically necessary;
(ii) the child is, or is likely to be, sexually active and there is nomethod of contraception that could reasonably be expected to be successfully applied;
(iii) if the child is female-the child has problems with menstruation and cessation of menstruation by sterilization is the only practicable way of overcoming the problems; and

(b) the child’s impairment results in a substantial reduction of the child’s capacity for communication, social interaction and learning; and
(c) the child’s 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; and
(d) the sterilisation can not reasonably be postponed; and
(e) the sterilisation is otherwise in the child’s best interests.

(2) Sterilisation is not in the child’s best interests if the sterilisation is-
(a) for eugenic reasons; or
(b) to remove the risk of pregnancy resulting from sexual abuse.

(3) In deciding whether the sterilisation is in the child’s best interests, the tribunal must-
(a) ensure the child is treated in a way that respects the child’s dignity and privacy; and
(b) do each of the following-

(i) in a way that has regard to the child’s age and impairment, seek the child’s views and wishes and take them into account;
(ii) to the greatest extent practicable, seek the views of each of the following persons and take them into account- (A) any parent or guardian of the child; (B) if a parent or guardian is not the child’s primary carer, the child’s primary carer; (C) the child representative for the child;
(iii) take into account the information given by any health provider who is treating, or has treated, the child; and

(c) take into account-

(i) the wellbeing of the child; and
(ii) alternative forms of health care that have proven to be inadequate in relation to the child; and
(iii) alternative forms of health care that are available, or likely to become available, in the foreseeable future; and
(iv) the nature and extent of short-term, or long-term, significant risks associated with the proposed sterilisation and available alternative forms of health care.

(4) The child’s views and wishes may be expressed in the following ways-
(a) orally;
(b) in writing;
(c) in another way including, for example, by conduct.

Source:
s.80D Guardianship and Administration Act 2000 [re children]

JURISDICTION: NEW SOUTH WALES

Definition

(1) The Tribunal must not give consent to the carrying out of medical or dental treatment on a patient to whom this Part applies unless the Tribunal is satisfied that the treatment is the most appropriate form of treatment for promoting and maintaining the patient’s health and well-being.

(2) However, the Tribunal must not give consent to the carrying out of special treatment unless it is satisfied that the treatment is necessary:
(a) to save the patient’s life, or
(b) to prevent serious damage to the patient’s health,

or unless the Tribunal is authorised to give that consent under subsection (3).

(3) In the case of:
(a) special treatment of a kind specified in paragraph (b) of the definition of that expression in section 33 (1), or
(b) prescribed special treatment (other than special treatment of a kind specified in paragraph (a) of that definition),

the Tribunal may give consent to the carrying out of the treatment if it is satisfied that:
(c) the treatment is the only or most appropriate way of treating the patient and is manifestly in the best interests of the patient, and
(d) in so far as the National Health and Medical Research Council has prescribed guidelines that are relevant to the carrying out of that treatment-those guidelines have been or will be complied with as regards the patient.

Source:
s.45 Guardianship Act 1987;

(4) Consent to the carrying out of special medical treatment on a child must not be given by the Guardianship Tribunal unless the Guardianship Tribunal is 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.

Source:
s.175(3) Children and Young Persons (Care And Protection) Act 1998

JURISDICTION: VICTORIA

Definition

“…the special procedure would be in the patient’s best interests.”

Source:
s42E (b) Guardianship and Administration Act 1986

JURISDICTION: SOUTH AUSTRALIA

Definition

(2) The Board cannot consent to a sterilisation unless-

(a) it is satisfied that it is therapeutically necessary for the sterilisation to be carried out on the person; or
(b) it is satisfied-

a. that there is no likelihood of the person acquiring at any time the capacity to give an effective consent; and
b. that the person is physically capable of procreation; and
c. that– i. 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; or ii. in the case of a woman, 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, and has 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 was communicated by the person to a medical practitioner.

Source:
s.61 Guardianship and Administration Act 1993

JURISDICTION: WESTERN AUSTRALIA

Definition

“(1) The Board may, by order, consent to the sterilization of a represented person if it is satisfied that the sterilization is in the best interests of the represented person.”

Source:
s.63 Guardianship and Administration Act 1991

JURISDICTION: TASMANIA

Definition

“(1) � the Board may consent to the carrying out of the medical or dental treatment if it is satisfied that –
(a) the medical or dental treatment is otherwise lawful; and
(b) that person is incapable of giving consent; and
(c) the medical or dental treatment would be in the best interests of that person.

(2) For the purposes of determining whether any medical or dental treatment would be in the best interests of a person to whom this Part applies, matters to be taken into account by the Board include –
(a) the wishes of that person, so far as they can be ascertained; and
(b) the consequences to that person if the proposed treatment is not carried out; and
(c) any alternative treatment available to that person; and
(d) whether the proposed treatment can be postponed on the ground that better treatment may become available and whether that person is likely to become capable of consenting to the treatment; and
(e) …..
(f) any other matters prescribed by the regulations.”

Source:
s.45 Guardianship and Administration Act 1995

JURISDICTION: AUSTRALIAN CAPITAL TERRITORY

Definition

“(1) The Tribunal � may, on application, by order, consent to a prescribed medical procedure … for the person if it is satisfied that-
(a) the procedure is otherwise lawful;
(b) the person is not competent to give consent and is not likely to become competent in the foreseeable future;
(c) the procedure would be in the person’s best interests; and
(d) the person, the guardian and any other person whom the Tribunal considers should have notice of the proposed procedure are aware of the application for consent.

(2) …

(3) In determining whether a particular procedure would be in the person’s best interests, the matters that the Tribunal shall take into account include-
(a) the wishes of the person, so far as they can be ascertained;
(b) what would happen if it were not carried out;
(c) what alternative treatments are available;
(d) whether it can be postponed because better treatments may become available.”

Source:
s.70 Guardianship and Management of Property Act 1991

JURISDICTION: NORTHERN TERRITORY

Definition

” �that it would be in the best interests of the represented person �”

Source:
s.21(8) Adult Guardianship Act 1988


Endnotes

[1] The States with jurisdiction for both adults and children are New South Wales, Queensland, Tasmania and South Australia.

[2] The “adult-only” Protocol was agreed to by the Inter-jurisdictional Committee on Guardianship and Administration (now called the Australian Guardianship and Administration Committee) at its fifth National Conference on Guardianship and Administration on the 13th October 1996 in Adelaide. That Protocol was implemented in all jurisdictions.

[3] Refer Schedule 1 for each jurisdiction’s definition of sterilisation.

[4] Secretary, Department of Health and Community Services v JMB and SMB (Marion’s Case) (1992) 175 CLR 218.

[5] At 253 per Mason CJ, Dawson, Toohey and Gaudron JJ.

[6] This is Queensland definition; refer Schedule 2 for each jurisdiction’s definition of ‘capacity’.