GNR [2022] QCAT 430

Date: 28 October 2022
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Members: Member Kanowski; Member Dr Stafford
Human Rights Act 2019 (Qld) Sections: ss 13, 17, 37
Rights Considered: Right to protection from torture and cruel, inhuman or degrading treatment; Right to health services
Other Legislation: Guardianship and Administration Act 2000 (Qld) ss 5, 6, 11(1), 11B, 68A, 70
Keywords: Health, Mental Health, Guardianship

This case considered whether consent should be given for a 21 year old female with impaired capacity to undergo a sterilisation procedure. The Tribunal referred to the adult’s right to not be subjected to medical treatment without full, free and informed consent (section 17(c)) and their right to access health services without discrimination (section 37(1)) under the Human Rights Act 2019 (Qld). The Tribunal considered that the adult’s right under section 37(1) would be enhanced by the giving of consent because the adult lacked the capacity to give her own consent. While the Tribunal acknowledged that giving consent would infringe section 17, this was balanced against the need for the procedure and it was determined that the limitation was justified, under section 13 of the Human Rights Act 2019 (Qld).

GNR was a 21 year old woman with Prader-Willi Syndrome, a genetic condition that had resulted in a severe intellectual disability. The delayed-onset of GNR’s menstrual cycle caused GNR extreme distress leading to anxiety, violence, and obsessive-compulsive behaviours: at [12]. Due to GNR’s complicated health needs, two gynaecologists agreed that surgical intervention would be the least invasive and safest option to cease menstruation: at [13]-[15]. This procedure, however, would cause infertility: at [15]. GNR expressed her views and wishes, with the aid of her representative from the Office of the Public Guardian, that she wanted to stop the bleeding through surgery, that she did not wish to have a child and, that if she did have a child, she would not be able to look after the child herself: at [18]. GNR’s parents, who were GNR’s guardians, were also in favour of the procedure: at [19].

The Tribunal acknowledged the General Principles outlined in chapter 2A of the Guardianship and Administration Act 2000 (Qld) provided that all adults have the right to the same human rights: at [3]. The Tribunal considered that the right to not be subjected to medical treatment without free, full and informed consent (section 17(c)) and the right to access health services without discrimination (section 37(1)) under the Human Rights Act 2019 (Qld) were relevant to the decision: at [6]. The Tribunal considered that the right to access health services without discrimination was enhanced by giving consent for the proposed procedure: at [6]. Indeed, the Tribunal appeared to consider that a refusal to permit the procedure due to the lack of consent arising from GNR’s incapacity would be discriminatory and infringe the right to health services: at [6].

The Tribunal accepted that giving consent to the proposed procedure would limit the right to not be subjected to medical treatment without free, full and informed consent (section 17(c)) under the Human Rights Act 2019 (Qld): at [6]. The Tribunal noted that this was an important right and that the procedure would have significant effects with the lifelong infertility: at [6]. This was weighed against the need and purpose for the procedure and the lack of less restrictive and reasonably available ways to achieve it: at [6]. The Tribunal concluded that it would be reasonable to limit the right not to be subjected to medical treatment without full, free and informed consent, as it could be demonstrably justified in a free and democratic society based on human dignity, equality and freedom under section 13 of the Human Rights Act 2019 (Qld): at [6].

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