DKD

[2016] NSWCATGD 57

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DKD [2016] NSWCATGD 57

Hearing dates:

8 February 2016

Date of orders:

08 February 2016

Decision date:

08 February 2016

Jurisdiction:

Guardianship Division

Before:

A Beckett, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
J Koussa, General Member (Community)

Decision:

The Tribunal consents to the following special medical treatment being provided to Mr DKD:

1. Cyproterone acetate, generally, up to 300mg daily.
2. Any necessary treatment that would normally be provided in association with or directly consequent upon the above treatment.

This consent is effective for a period of 12 months from the date of this order.

Catchwords:

SPECIAL MEDICAL TREATMENT – Application for consent to special medical treatment – Androcur (cyproterone acetate) – 32-year-old man – moderately severe intellectual disability – most appropriate form of treatment to promote and maintain subject person’s health and well-being – consent given

Legislation Cited:

Guardianship Act 1987 (NSW), ss 33(2), 42(2), Pt 5
Guardianship Regulation 2005 (NSW)

Category:

Principal judgment

Parties:

Mr DKD (subject person)
Dr QDX (applicant)

Representation:

Separate Represenation:
J Sloan (subject person)

File Number(s):

28094

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

What the Tribunal Decided

1. The Tribunal consented to the special treatment for Mr DKD in the terms set out in the order dated 8 February 2016.

Background

2. Mr DKD is a 32-year-old man who lives in group home accommodation in regional NSW.

3. Mr DKD has been under the guardianship of the Public Guardian since 11 March 2004. This order was renewed most recently on 11 April 2011, for a five-year period. This order was varied on requested reviews on 27 April 2012 and 30 July 2014. The order as varied gives the Public Guardian authority to make decisions regarding Mr DKD’s accommodation, health care, medical and dental treatment, services provision to him, and the use of restrictive practices in his behaviour support plan.

4. On 18 November 2015, Dr QDX, psychiatrist, requested consent to the treatment of Mr DKD with cyproterone acetate (also known as Androcur). This hearing was convened to deal with that application.

5. On 19 January 2016, the Tribunal ordered that a separate representative be appointed for Mr DKD.

The hearing

6. At the end of these Reasons for Decision is a list of the witnesses who attended the hearing. [Appendix removed for publication.]

7. Mr DKD did not attend the hearing. Ms Y, behaviour management specialist, advised the Tribunal that because of Mr DKD’s disabilities he was unable to participate in the hearing or to express a view.

8. The separate representative appointed for Mr DKD, Mr James Sloan, agreed with this based on his meeting with Mr DKD prior to the hearing. There was general agreement, by Mr Sloan and the others participating in the hearing, that for these reasons it was appropriate to proceed with the hearing in Mr DKD’s absence.

9. The Tribunal decided, based on the issues raised in the application and the evidence regarding Mr DKD’s inability to participate in the hearing, that it should proceed with the hearing despite Mr DKD’s non-attendance at it.

What did the Tribunal have to consider?

10. If a person is incapable of giving informed consent to special medical treatment then only the Tribunal can provide consent.

11. Before the Tribunal can give consent to the special treatment proposed for Mr DKD, it must be satisfied that:

• Mr DKD is incapable of giving consent to the proposed special treatment; and

• The proposed special treatment is the most appropriate form of treatment for promoting and maintaining Mr DKD’s health and well-being; and

• The proposed treatment is the only or most appropriate way of treating Mr DKD and it is manifestly in his best interests; and

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

12. In considering the above questions, the Tribunal must have regard to the objects of Part 5 of the Guardianship Act 1987 (NSW) (the Act) and the views of Mr DKD, the applicant Dr QDX, and any person responsible for Mr DKD.

13. The Tribunal must also have regard to the following matters, as outlined in subsection 42(2) of the Act:

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.

Consideration

Is the proposed treatment ‘special treatment’?

14. The proposed treatment with cyproterone acetate is special medical treatment under the Guardianship Regulation 2005 (NSW) which describes as special treatment “any treatment that involves the use of androgen reducing medication for the purpose of behavioural control”.

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

15. Section 33(2) of the 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.

16. The Tribunal accepted the evidence of Dr QDX that Mr DKD is not capable of giving an informed consent to the treatment because he has an intellectual disability of at least moderate severity. This issue was not in contention at the hearing.

What are the reasons for the proposed treatment?

17. Dr QDX states that the condition requiring treatment is compulsive and unsuccessful masturbation by Mr DKD, including digital penetration of the rectum, resulting in local traumatic ulceration and extensive bleeding.

18. This evidence is corroborated by that from the accommodation service and hospital records from a public hospital. The submission for restricted practice authorisation, dated 7 January 2016, by Ms Z, acting team leader, states that Mr DKD has been admitted to hospital, and the ambulance service has been called on several occasions, due to excessive blood loss from his rectum due to him penetrating his rectum during masturbation and bursting the ulcers inside his rectum. The Tribunal also had before it a chart for the period September to December 2015 recording the number of times Mr DKD went to his room to masturbate.

19. Dr QDX told the Tribunal that the bleeding caused by Mr DKD’s stimulation of his rectum during masturbation resulted in significant anaemia, which was a health risk to Mr DKD.

How will the proposed treatment promote and maintain the patient’s health and well-being?

20. The Tribunal is satisfied that without the proposed special medical treatment, Mr DKD’s health is at risk due to excessive blood loss.

Are there any risks associated with the proposed treatment?

21. Dr QDX told the Tribunal that the potential risks of the proposed special medical treatment are osteoporosis, inflammation of the liver, and the risk of developing secondary sexual characteristics.

22. Dr QDX advised that Mr DKD will be closely monitored in respect of such potential risks; he will see Dr QDX on an approximately three-monthly basis and have regular bone density and blood tests to monitor potential side-effects.

23. Dr QDX advised that the effect of the proposed treatment – lowering hormone production – is not permanent and is reversible.

What are the alternative options for treatment that are available?

24. Dr QDX told the Tribunal that the potential risks to Mr DKD‘s health cannot be managed any other way. Common alternative strategies such as redirection and explanation have no impact with Mr DKD. Surgery could not remove the ulceration because of Mr DKD’s repeated reopening of the ulcers.

25. Ms Y agreed with this. It has not been possible to deal with the risks to Mr DKD through his behaviour support plan. Ms Y and Ms Z confirmed that they would continue to explore other areas regarding Mr DKD’s apparent current inability to masturbate successfully, with a view to improving the safety of his masturbation practices. This will include implementing a referral to a person specialising in sexuality issues and a review of Mr DKD’s medication to determine if any may have a side-effect of inhibiting ejaculation.

26. At the time of the hearing, Mr DKD had been receiving the proposed special medical treatment for almost three months. There was no evidence before the Tribunal to suggest that the proposed special medical treatment has an adverse effect on Mr DKD’s health or well-being.

Does the proposed treatment comply with the relevant guidelines?

27. Dr QDX told the Tribunal that he was not aware of any specific National Health and Medical Research Council guidelines that applied to the proposed treatment.

Views of relevant persons

28. Mr DKD was unable to express a view to the Tribunal.

29. The Public Guardian is Mr DKD’s person responsible under the Act with authority to make decisions regarding medical and dental treatment (that is not special medical treatment). Ms Judy Hunt, for the Public Guardian, advised the Tribunal prior to the commencement of the hearing that the Public Guardian supported the application.

30. Mr DKD’s mother indicated that she agreed with whatever the doctors thought was best for Mr DKD.

Is the proposed treatment the most appropriate treatment and manifestly in the patient’s best interests?

31. Dr QDX’s opinion is that the proposed special medical treatment is the most appropriate way of maintaining Mr DKD’s health and well-being and is manifestly in his best interests.

32. Mr Sloan told the Tribunal that it is apparent in this case that the special medical treatment is being proposed because of the risks to Mr DKD’s health without it, and not because of any social judgments about Mr DKD’s masturbation. In these circumstances, his view was that the treatment was appropriate.

33. This was also the view of the other persons participating in the hearing.

34. The Tribunal was satisfied that at present the proposed special medical treatment is the only or most appropriate way of treating Mr DKD and promoting his health and well-being. Given the significant risks to Mr DKD’s health without treatment, the Tribunal found that the proposed special medical treatment is manifestly in Mr DKD’s best interests.

The Tribunal’s Decision

35. The Tribunal decided to consent to the proposed special medical treatment of cyproterone acetate up to 300 mgs a day for Mr DKD for 12 months.

36. Given the nature of the behaviours requiring the proposed special medical treatment, the period of the Tribunal’s consent decision and the fact that the current guardianship order for Mr DKD has only two months to run before its review, the Tribunal did not on this occasion confer on the guardian the authority to make ongoing consent decisions regarding special medical treatment for Mr DKD for the remaining term of the current guardianship order. This means that if consent for continuing special medical treatment of Mr DKD is required after one year, a further application for such consent will need to be made to the Tribunal.

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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: 17 May 2017