Sterilisation is a significant and often irreversible medical procedure that can have life-altering consequences for the person involved.
In guardianship matters, it is crucial to ensure that any decision to authorise a sterilisation procedure is made in the best interests of the person concerned.
In this blog post, I examine the factors that are relevant in determining whether a sterilisation procedure is in a person's best interests, with reference to the Western Australian case of EW v CD [2021] WASAT 111 and the Guardianship and Administration Act 1990 (WA) (the GA Act).
Statutory Framework
The GA Act governs the authority of guardians in relation to medical treatment for represented persons, including sterilisation procedures (s 13).
Guardians may be authorised to make decisions on behalf of a represented person regarding medical treatment, but the GA Act specifically prohibits a guardian from consenting to the sterilisation of a represented person except in accordance with Division 3 of Part 5 of the Act (s 13).
Importantly, the GA Act does not define the term "sterilisation" but does provide a definition for "procedure for the sterilisation" (s 15).
The GA Act strictly regulates the circumstances in which the sterilisation of a represented person may take place, including requiring the consent of both the guardian and the Tribunal, and ensuring that all rights of appeal have been exhausted (s 17).
Best Interests
The key consideration in determining whether a sterilisation procedure is appropriate is whether it is in the person's best interests (s 22).
The GA Act does not provide a specific definition of "best interests", but s 51(2) offers guidance on how a guardian should act in the best interests of a represented person, including considerations such as community participation, self-care, protection from neglect or abuse, and the maintenance of supportive relationships and cultural environments.
In the case of EW v CD [2021] WASAT 111, the Tribunal considered the principles set out in Re Jane, which identified nine factors relevant to determining whether a sterilisation procedure was in the best interests of a person (para 25).
These factors include:
The possibility of the person becoming pregnant;
The potential for trauma or psychological damage from pregnancy or sterilisation;
The likelihood of voluntary sexual activity or rape;
The person's ability to understand reproduction or contraception and the likely permanence of that inability;
The feasibility of less drastic means of contraception;
The advisability of sterilisation at the time of the application rather than in the future;
The person's ability to care for a child;
The potential for medical or scientific advances that may improve the person's condition or offer less drastic sterilisation procedures; and
Evidence that the proponents of sterilisation are genuinely seeking the best interests of the person, rather than their own or the public's convenience.
Key take-aways
In guardianship matters, the decision to authorise a sterilisation procedure must always be made with the best interests of the person in mind.
A careful and thorough consideration of the relevant factors outlined in Re Jane, as well as the specific circumstances of the individual case, is crucial in determining whether a sterilisation procedure is in a person's best interests.
Guardians should always be mindful of these factors and the strict regulatory requirements under the GA Act when considering sterilisation procedures for represented persons.