BKC

[2016] NSWCATGD 71

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BKC [2016] NSWCATGD 71
Hearing dates:	15 April 2016
Date of orders:	15 April 2016
Decision date:	15 April 2016
Jurisdiction:	Guardianship Division
Before:	J Moir, Senior Member (Legal) Dr B McPhee, Senior Member (Professional) K Laurence, General Member (Community)
Decision:	The application for consent to special medical treatment made by Mr KAQ in respect of Mr BKC is refused and therefore dismissed.
Catchwords:	SPECIAL MEDICAL TREATMENT – Application for consent to special medical treatment – Androcur (cyproterone acetate) – 52-year-old man – intellectual disability and paedophilic tendencies – capacity to consent – consent refused
Legislation Cited:	Guardianship Act 1987 (NSW), ss 33, 33(2), 42(2), 44(2); Pt 5 Guardianship Regulation 2010 (NSW), reg 10
Cases Cited:	Re MB (Medical Treatment) [1997] EWCA Civ 1361; (1997) 2 FCR (UK) 541
Category:	Principal judgment
Parties:	Mr BKC (subject person) Mr KAQ (applicant) The NSW Public Guardian
File Number(s):	52127
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

SPECIAL MEDICAL CONSENT

What the Tribunal Decided

1. The Tribunal refused to consent to the special medical treatment for Mr BKC as proposed in the application by Mr QPL (substitute applicant), on the basis that Mr BKC is capable of providing consent on his own behalf.

Background

2. Mr BKC is a 52-year-old man who lives in an ADHC group home in regional NSW. Prior to this he was living in another suburb in regional NSW and prior to that he was an inmate at a Correctional Centre. He receives support from the Community Justice Program. Mr BKC has been diagnosed with an intellectual disability and has some mental health issues. He is reported to have paedophilic attraction and to have spent time in custody for offences of this kind.

3. A guardianship order was made for Mr BKC in February 2013, which was reviewed and renewed in 2014 and 2016. The order made in February 2016 appointed the Public Guardian for a period of two years with authority to make decisions about his accommodation (coercive), services, and restrictive practices. Mr BKC was considered to be able to provide consent to his own medical and dental treatment, but evidence given at the hearing was that he was not able to provide consent to Cyproterone acetate (Androcur).

4. On 23 February 2016, the Tribunal received an application from Mr KAQ, House Manager, for consent to the administration of Cyproterone acetate 50mg daily for the control of libido, given Mr BKC’s history of hypersexualised behaviour including convictions for paedophilia. Mr KAQ states that the treatment started shortly before he came to live at his current accommodation.

Conduct of the hearing

5. A hearing was conducted in Sydney and the Tribunal spoke by telephone to Mr BKC and a worker at his accommodation, Mr QPL, who explained that Mr KAQ was not at work and not available to participate. He was willing to be the substitute applicant and the Tribunal accepted him as such. The Tribunal also spoke by telephone to Dr Z, GP Registrar.

6. At the end of these Reasons for Decision are lists of the parties to the application. [Appendix removed for publication.]

What did the Tribunal have to consider?

7. When considering an application for consent to special treatment, the Tribunal must be satisfied that:

1. It is appropriate for the treatment to be carried out

2. The proposed treatment is the most appropriate form of treatment for promoting and maintaining the patient’s health and well being

3. The proposed treatment is the only or most appropriate way of treating the patient and it is manifestly in his best interests and

4. The proposed treatment complies with any relevant National Health and Medical Research Council guidelines.

8. In considering the above questions, the Tribunal must have regard to the views of Mr BKC, Mr QPL and any person responsible (s 44(2) of the Guardianship Act 1987 (NSW)) as well as the objects of Part 5. The Tribunal understands that Mr BKC does not have anyone who is regarded as his person responsible.

9. The Tribunal must also have regard to the following matters, as outlined in s 42(2):

1. the grounds on which it is alleged that the patient is a patient to whom this Part applies,

2. the particular condition of the patient that requires treatment,

3. the alternative courses of treatment that are available in relation to that condition,

4. the general nature and effect of each of those courses of treatment,

5. the nature and degree of the significant risks (if any) associated with each of those courses of treatment, and

6. the reasons for which it is proposed that any particular course of treatment should be carried out.

Is the proposed treatment ‘special treatment’?

10. Section 33 of the Guardianship Act defines “special treatment” to include treatment declared by the Regulations to be such. Regulation 10 of the Guardianship Regulation 2010 (NSW) provides that “any treatment that involves the use of androgen reducing medication for the purpose of behavioural control” is “special treatment” for which the Tribunal can provide consent, if the legal criteria are satisfied.

11. The proposed treatment is the administration of Cyproterone acetate 50mg to Mr BKC. Cyproterone acetate is a drug that blocks the effects of an androgen (the male hormone testosterone) in the body and, in turn, decreases the amount of testosterone produced in the body.

12. The Tribunal considered a Health Professional report from Dr Z prior to the hearing. Dr Z states that the treatment with Cyproterone acetate 50mg is for the purpose of assisting Mr BKC to control his otherwise uncontrollable urges to commit sexual assault upon children. He states that it is not likely to cause permanent infertility and that the effect of the medication would wear off within several months of discontinuing therapy.

13. The Tribunal is reasonably satisfied that the proposed treatment is “special treatment” as it involves the administration of androgen reducing medication for the purpose of behavioural control.

Is Mr BKC incapable of providing consent to the proposed treatment?

14. Section 33(2) of the Guardianship Act provides that a person is incapable of giving or withholding consent to medical or dental treatment if the person:

1. is incapable of understanding the general nature and effect of the proposed treatment, or

2. is incapable of indicating whether or not he or she consents or does not consent to the treatment being carried out.

15. “Understanding the general nature and effect”, in the Tribunal’s view, entails a degree of weighing up of information about the proposed medical treatment, as well as understanding and retaining the information provided. This is consistent with numerous cases on this point in England and Australia. In the English case of Re MB (Medical Treatment) [1997] EWCA CIV 1361; (1997) 2 FCR (UK) 541, Butler-Sloss LJ said:

“A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or to refuse treatment. That inability to make a decision will occur when:

a patient is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having or not having the treatment in question;

the patient is unable to use the information and weight it in the balance as part of the process of arriving at the decision”.

16. In his report, Dr Z states that Mr BKC has a developmental delay which makes it difficult for him to make decisions which are appropriate for his long-term health and wellbeing without appropriate support and guidance. At the hearing, Dr Z said that whilst he has not undertaken formal assessment of Mr BKC’s capacity, in his view he believes that he is capable of understanding the general nature and effect of the treatment with Cyproterone acetate 50mg, although was “borderline” in his view. He said that Dr Y, Psychiatrist, initially prescribed the medication and that he may have a better idea about Mr BKC’s capacity to provide consent for himself.

17. Mr BKC told the Tribunal that he does feel better taking the medication but that he has thought about stopping it because he won’t otherwise know if he is able to “control himself” without it. He spoke to Mr KAQ and Dr Z about this and they both helped him think through what he thought and he decided to remain on the medication. He was able to explain to the Tribunal, in simple terms, the purpose of the medication and understood the benefit of taking it as opposed to the risks of not taking it.

18. The Tribunal heard that the dose has been reduced from 150mg a day to 50 mg a day and Mr BKC was able to explain this process to the Tribunal in some detail. This was done in accordance with Dr Y’s directions.

19. The Tribunal did not have any recent reports from Dr Y, and Mr BKC said that he had not seen Dr Y for some time. However the Tribunal noted a letter from Dr Y from 2013 in which he explains that he had prescribed Mr BKC with Cyproterone acetate and the reasons for doing so. Dr Y explicitly states that in his view Mr BKC is capable of providing consent to this treatment on his own behalf. Dr Y explicitly notes the significance of this because of the classification of this treatment as “special medical treatment” which would otherwise require the consent of the Guardianship Tribunal.

20. The Tribunal noted that although a guardianship order has been in place for some time, in the last two reviews the reasons for decision noted that no medical or dental consent function is given to the guardian because Mr BKC is able to provide consent for himself. The Tribunal also noted in Mr KAQ’s application he indicates that Mr BKC understands the general nature and effect of the medications Cyproterone acetate 50mg, and Dr Z agrees with this. This is not consistent with the Tribunal’s reasons for decision from the guardianship review in 25 February 2016, where Mr KAQ is said to have observed that Mr BKC is able to provide consent for medical and dental treatment except Androcur (the treatment under consideration).

21. The law presumes that a person is able to make decisions for themselves unless there is reliable evidence to the contrary. The Tribunal is satisfied that the weight of the evidence in this case indicates that Mr BKC is capable of providing consent (or not) to his treatment with Cyproterone acetate 50mg, on his own behalf. The Tribunal is satisfied that Mr BKC is capable (and does) understand the general nature and effect of the treatment and that he is capable of expressing his views on this issue. On this basis the Tribunal is not able to provide consent for the treatment on his behalf.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 06 July 2018