C v Guardianship and Administration Board

[2002] TASSC 29

[2002] TASSC 29

CITATION:              C v Guardianship And Administration Board [2002] TASSC 29

PARTIES:C

v

GUARDIANSHIP AND ADMINISTRATION

BOARD OF TASMANIA

POWER-CONNAN (Dr)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 33/2002
DELIVERED ON:  10 May 2002
DELIVERED AT:  Hobart
HEARING DATES:  10 May 2002
JUDGMENT OF:  Blow J

[Edited version of reasons delivered orally]

CATCHWORDS:

Mental Health - Effect of mental illness or disability on civil rights and duties - Other cases - Capacity to consent to medical treatment - Understanding of effect of treatment - Schizophrenic without insight.

Guardianship and Administration Act 1995 (Tas), ss36(2)(a), 45(4).
Aust Dig Mental Health [14]

REPRESENTATION:

Counsel:
           Appellant:  M I Taylor
           Respondent:  P Turner
Solicitors:
           Appellant:  Butler McIntyre & Butler
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2002] TASSC 29
Number of Paragraphs:  10

Serial No 29/2002
File No LCA 33/2002

C v GUARDIANSHIP AND ADMINISTRATION
BOARD OF TASMANIA and DR POWER-CONNAN

REASONS FOR JUDGMENT  BLOW J
(Edited Version of Reasons Delivered Orally)  10 May 2002

1. This is an appeal from a decision made by the Guardianship and Administration Board on 3 May 2002.  The appeal has been brought on three grounds.  Ground 2 asserts that the Board erred in law and/or in fact in determining for the purposes of the Guardianship and Administration Act 1995 ("the Act"), ss45(1)(b) and 36(2)(b)*, that the appellant was incapable of indicating whether or not he consented or did not consent to the carrying out of medical treatment.  What happened, however, is that on 3 May the Board gave its consent to the carrying out of certain medical treatment of the appellant, having formed the conclusion that he was incapable of giving his consent on the basis that he did not understand the nature and effect of the proposed treatment, not on the basis that he was incapable of indicating whether or not he consented to the carrying out of the treatment.

1. In order for the Board to make the order that it did pursuant to the Act, s45(1), it is required by s45(1)(b) that the person who is the subject of the Board's determination be incapable of giving consent to medical or dental treatment. The question of incapability is dealt with in s36 in such a way as to give the word "incapable" a wider meaning than it would otherwise have. There are two bases provided for in s36(2) upon which it might be concluded that an individual is incapable of giving consent. Under s36(2)(b), a person is incapable of giving consent if he or she "is incapable of indicating whether or not he or she consents or does not consent to the carrying out of the treatment". This was not a case about a lack of ability to communicate, and therefore the Board was not concerned at all with s36(2)(b).

1. The other basis provided for in s36(2) is the subject of s36(2)(a). Under that paragraph, a person is incapable of giving consent if he or she "is incapable of understanding the general nature and effect of the proposed treatment". In this case, there was ample evidence that the appellant was capable of understanding the general nature of the proposed treatment. He recognised that schizophrenia was a disorder. He said that he had suffered from it in the past. He evidently understood that the drug or drugs that were proposed for him were drugs for the treatment of schizophrenia. However he was firmly of the belief that he did not suffer from schizophrenia and therefore did not need that treatment. So this is not a case about an appellant who lacked any understanding as to the general nature of the proposed treatment. Rather, it is a case about the effect of proposed treatment and about understanding the effect of proposed treatment.

1. The conclusion reached by the Board as to the question of capacity appears in the following passage in the Board's reasons for its decision:

"The patient does not accept that he has a mental illness and categorically denies he has schizophrenia.  He is insightless.  He does not understand the nature and effect of the proposed treatment for his schizophrenia."

1. Mr Taylor made a submission that the Board had erred in law on the basis that s36(2)(a), when it speaks of someone being "incapable of understanding the general nature and effect of the proposed treatment", does not refer to that person's understanding of the effect of the proposed treatment on him or her, but refers to his or her understanding of the effect of proposed treatment on patients in general. Mr Turner, who appeared for the respondent, contended that that was not so, and that the provision in question was intended to refer to the person's understanding as to the effect of the proposed treatment on him or her.

1. In my view Mr Turner's interpretation is the correct one. The very fact that the provision refers to the "proposed treatment" indicates that it is concerned with the particular treatment proposed for an individual. The word "general" in s36(2)(a), in my view, does no more than to refer to an understanding in general terms, rather than an understanding as to matters of detail. I do not think one can use the word "general" as a basis for a conclusion that s36(2)(a) is concerned with the effect of treatment on patients in general. The Acts Interpretation Act 1931, s8A, requires "an interpretation that promotes the purpose or object of the Act … to be preferred to an interpretation that does not promote the purpose or object". From the long title to the Act, it appears that one of the purposes or objects of it is "to provide for medical and dental treatment for persons with a disability". It follows that, in construing s36(2)(a), an interpretation that facilitates the provision of medical treatment to persons with disabilities ought to be preferred to one that does not. I think it follows that because there are situations like this where individuals understand the nature and effect of treatment by particular drugs in general terms in relation to patients in general, but do not have insight into their own conditions and therefore oppose the use of such treatment in relation to them, that an interpretation of the word "effect" that relates that word to the individual is one that promotes the purpose or object of the Act. It is for those reasons that I conclude that s36(2)(a) is concerned with "the general nature and effect of the proposed treatment" as that treatment relates to the individual. I do not think the Board erred in law in relation to its approach to s36(2)(a).

1. Under the Act, s76(2)(b), an appeal may be brought on a question other than a question of law with the leave of the Court. Mr Taylor sought the leave of the Court to challenge the finding of the Board as to the appellant's capacity on the basis of errors of fact. In my view, there is no reason to doubt the correctness of the decision that the Board came to as to the capacity of the appellant, and therefore leave ought not be granted. The strongest argument that could be put in favour of the appellant as to there having been an error of fact is based on a single comment made by Dr Reid which appears in the notes of the Board's proceedings at page 80 of my papers. Dr Reid said, "Peter, I think, does not have insight into his illness. I think he understands the treatment could be beneficial." However, if one looks at that comment in context, Dr Reid very shortly afterwards said, "I don't think he has the capacity to see the benefits of medication for his condition." Clearly, whatever Dr Read meant when he said "I think he understands the treatment could be beneficial", he was not suggesting that the appellant was capable of understanding the effect or general effect of the treatment then proposed. I think the evidence really is all one way, and that the decision that the Board came to in relation to the question of incapacity was inevitable. It is for those reasons that I refuse leave. Ground 1 therefore fails.

1. Ground 3 of the notice of appeal relates to a determination made by the Board pursuant to s45(4), giving its consent for the treatment to be carried out immediately. It was only able to do that if it considered that the treatment was urgent within the meaning of s45(4)(b). If I uphold ground 3, there will be no benefit to the appellant at all because, under s45(3), once an appeal has been instituted and dealt with, the decision of the Board to give its consent to medical treatment may have immediate effect. However I will deal with that ground very briefly. The effect of s45(3) is that, where the Board gives its consent to medical or dental treatment under s45(2), that consent does not take effect until the appeal period of 28 days allowed under s76 has expired. There is an exception if an appeal is in fact instituted. In that situation, the decision takes effect when the appeal has been dealt with. In measuring urgency therefore, I think one would have to take into account the context, so that something is urgent if it needs to be done in less than 28 days, or before an appeal can be dealt with. Here there was evidence that the appellant had been in hospital for about a month; that the normal stay for someone in his situation was 12 days; that his condition was deteriorating; that his relationship with his treating psychiatrist was also deteriorating; and that, whilst he presented no danger on the ward, there was some risk of physical danger to others because he had engaged in threatening behaviour, had begun to carry scissors, and had brandished a knife at some people. In those circumstances, I think it was open to the Board to make a finding that treatment was urgent and I do not think therefore that the Board erred in law in deciding that the treatment was urgent. I would not grant leave under s76(2)(b) in relation this ground because of the futility of reconsidering the facts in relation to it.

1. For all of these reasons, I think that the appeal should be dismissed.  I discharge the injunctive orders made by the Chief Justice and dismiss the appeal.

1. I order that the appellant pay the costs of the respondents of and incidental to the appeal, to be taxed.

*Guardianship and Administration Act 1995, s45 ¾ (1)   On hearing an application for its consent to the carrying out of medical or dental treatment the Board may consent to the carrying out of the medical or dental treatment if it is satisfied that ¾  

(a)   …
(b)   that person is incapable of giving consent; and

…

36 ¾ (1)   This Part applies to a person with a disability who is incapable of giving consent to the carrying out of medical or dental treatment, whether or not the person is a represented person.

(2)   For the purposes of subsection (1), a person is incapable of giving consent to the carrying out of medical or dental treatment if the person ¾

(a)   is incapable of understanding the general nature and effect of the proposed treatment; or

(b)   is incapable of indicating whether or not he or she consents or does not consent to the carrying out of the treatment.