FXU [2019] NSWCATGD 38

FXU [2019] NSWCATGD 38

Because FXU was sedated and intubated in intensive care and therefore unable to provide consent, the Portacath was malpositioned and posed a serious risk of arrhythmia possibly leading to cardiac arrest, adjustment was more complex and riskier, and doing nothing was not safe, removal under general anaesthetic was appropriate and consistent with FXU's welfare and interests notwithstanding the person responsible's conditional refusal to consent.

Jurisdiction
Australia
Judgment Date
18 September 2019
Procedural Posture
Consent to Medical Treatment Application in the Guardianship Division / Urgent Hearing and Decision on Application for Consent to Remove an Indwelling Portacath
Outcome
Consent given for the proposed medical treatment.
Legal Topics
['consent to Medical Treatment' 'incapacity to Consent' 'person Responsible' 'detained Person Under the Mental Health Act' 'best Interests and Welfare of Patient' 'urgent Medical Procedure']
['guardianship' 'medical Treatment Consent' 'mental Health'] ['consent to Medical Treatment' 'incapacity to Consent' 'person Responsible' 'detained Person Under the Mental Health Act' 'best Interests and Welfare of Patient' 'urgent Medical Procedure']

Case Brief

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Procedural Posture

Consent to Medical Treatment Application in the Guardianship Division / Urgent Hearing and Decision on Application for Consent to Remove an Indwelling Portacath

Legal Issues

  1. 1 ['Whether FXU was incapable of giving or withholding consent to the proposed medical treatment.' "Whether it was appropriate and consistent with FXU's welfare and interests for the Tribunal to consent to removal of the malpositioned Portacath under general anaesthetic." 'Whether the risks of leaving the Portacath in situ or adjusting it outweighed the risks of removal.' "Whether the person responsible's conditional opposition meant the Tribunal should decide whether to consent."]

Ratio Decidendi

Because FXU was sedated and intubated in intensive care and therefore unable to provide consent, the Portacath was malpositioned and posed a serious risk of arrhythmia possibly leading to cardiac arrest, adjustment was more complex and riskier, and doing nothing was not safe, removal under general anaesthetic was appropriate and consistent with FXU's welfare and interests notwithstanding the person responsible's conditional refusal to consent.

Court Disposition

Consent given for the proposed medical treatment.

Orders

  • ["The Tribunal consents to removal under general anaesthetic of FXU's indwelling Portacath and any necessary treatment that would normally be provided in association with or directly consequent upon that treatment." 'The consent is effective for a period of three days from the date of the order.']