| Published by Felicity Iredale
The New South Wales Civil and Administrative Tribunal Guardianship Division (the Tribunal) handed down a decision regarding the standard required to be applied in determining an application for special medical treatment.
The Tribunal, in the decisions of NXM (No 1)¹ and NXM (No 2),² has reviewed the appropriate standard to be applied in consenting to special medical treatment resulting in infertility of a young woman with severe intellectual disability. The two decisions were independent of one another with the application in NXM (No 1) being brought by Miss NXM’s gynaecologist and the same application brought by her general practitioner in NXM (No 2). The Tribunal in NXM (No 2) held that the special medical treatment of a hysterectomy with ovarian conservation was necessary to prevent serious damage to a person’s health.
While this decision was made in New South Wales, it has wide-reaching relevance. Each state and territory in Australia has its own guardianship laws and legislation applying to special medical procedures. While a tribunal or court must follow those speciﬁc laws, the test and standard relating to procedures leading to infertility has been determined and settled by the High Court in Marion’s Case.
Therefore, the requirement that the procedure be a step of last resort will apply across the country. Courts or tribunals may also look to this decision or the other authorities cited in these cases for guidance as to the stringent nature of the test.
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