EBT (Medical Consent)

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

EBT – Application for consent to medical treatment by Dr Richard Benjamin, Mental Health Services

Neutral citation: EBT (Medical Consent) [2010] TASGAB6

REASONS FOR DECISION

Anita Smith (President)
Lindi Wall (Member)
Toni Law (Member)

Consent to medical treatment – capacity to understand the nature and effect of treatment – best interests – person not attributing misery and suffering to schizophrenia and therefore believed treatment to be futile.
Guardianship and Administration Act 1995 s 44, 45

The Board received an application pursuant to section 44 of the Guardianship and Administration Act 1995 (‘the Act’) for consent to medical treatment from Dr Richard Benjamin of Mental Health Services South seeking consent to treat EBT with fortnightly injections of the antipsychotic drug, Risperidal Consta.
Criteria for the application:
In considering an application for consent, pursuant to section 44 of the Act, the Board must be satisfied of the criteria in section 45 of the Act. These are:
“45. Consent of Board
(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 –
(a) the medical or dental treatment is otherwise lawful; and
(b) that person is incapable of giving consent; and
(c) the medical or dental treatment would be in the best interests of that person.
(2) For the purposes of determining whether any medical or dental treatment would be in the best interests of a person to whom this Part applies, matters to be taken into account by the Board include –
(a) the wishes of that person, so far as they can be ascertained; and
(b) the consequences to that person if the proposed treatment is not carried out; and
(c) any alternative treatment available to that person; and
(d) whether the proposed treatment can be postponed on the ground that better treatment may become available and whether that person is likely to become capable of consenting to the treatment; and
(e) in the case of transplantation of tissue, the relationship between the 2 persons concerned; and
(f) any other matters prescribed by the regulations.
(3) Subject to subsection (4), a decision of the Board to give its consent to medical or dental treatment has no effect until the period of appeal under section 76 has expired or, if an appeal has been instituted, it is set aside, withdrawn or dismissed.
(4) If –
(a) an application for the consent of the Board for the carrying out of medical or dental treatment on a person has been made under section 44; and
(b) the Board considers that the treatment is urgent –
the Board may give its consent for the treatment to be carried out immediately.”

The circumstances of the hearing:

Notice of the hearing was sent to:
EBT,
Dr Richard Benjamin (applicant),
LT (EBT’ mother), and
Mr Geoff Clarke (Mental Health Services Case Manager).
Initially the hearing was listed for 5^th March 2010, but it was adjourned, because the applicant was on leave at that time, to the 19^th March 2010. Notices and amended notices were sent on 17 and 24^th February 2010 respectively. EBT was active during the notice period in requesting from the Board copies of all information relevant to the application prior to the hearing date. He also prepared extensive submissions (in three booklets) for the Board to consider, noting to staff members of the Board that he would not attend the hearing because he felt uncomfortable speaking in front of groups of people.
The hearing on 19^th March 2010 was attended by:
Dr Richard Benjamin,
LT, (EBT’s mother)
GT (EBT’ father), and
Mr Geoff Clarke.
Formal matters:
The Board was satisfied that, as EBT’ treating psychiatrist, Dr Benjamin was a person with a proper interest in the matter for the purposes of section 44(1) of the Act and that the application was regular for the purposes of section 44(2).
The Board was also satisfied that the treatment proposed, fortnightly injections with Risperidal Consta, is a regular and recognised treatment for a range of conditions and is therefore ‘otherwise lawful’ for the purposes of section 45(1)(a). The issues in contention in this case were firstly whether EBT is incapable of giving consent for the purposes of section 45(1)(b) and whether the treatment would be in his best interests for the purposes of section 45(1)(c).

Matters in dispute:

Is EBT incapable of giving consent to the treatment?

In his application, Dr Benjamin addressed the issue of EBT’ capacity to give consent as follows:
“Patient used to take anti-depressant and anti-psychotic treatment with last psychiatrist. Since deterioration has become suicidal at times, cut self off from family and others and is insightless into need for treatment.”
Dr Benjamin also, however, responded the question in the pro forma application, which asks “In your opinion does the patient understand the proposed treatment?” with “Yes”. Dr Benjamin explained that while EBT has been taking antipsychotic treatment for over 20 years, he has not taken the proposed treatment before. Dr Benjamin’s view was that although EBT may understand the treatment, because he does not believe that he is sick to the level of requiring this medication, he lacks the capacity to make a reasonable judgment about whether or not to have the treatment.
At the hearing Dr Benjamin discussed his diagnosis of EBT as being a person with schizophrenia. He noted that he has only known EBT since August 2009 because EBT has been a patient of Prof. Kirkby for some 20 years or more, Prof Kirkby is presently overseas and so EBT has come under Dr Benjamin’s care. Dr Benjamin has little in the way of ‘hand-over’ information from Dr Kirkby, but has observed a decline in compliance with treatment since Prof. Kirkby’s departure as well as a decline in mental health. Dr Benjamin believed that EBT had ceased taking any medication in February 2009.
There were three indicators to Dr Benjamin that confirmed for him that EBT has schizophrenia. Firstly, he described EBT as having ‘florid formal thought disorder’ which is demonstrated by his inability to have a linear conversation and come to a point. As a result of this disorder, Dr Benjamin has not been able to take a reliable history from EBT or been able to establish an effective therapeutic relationship despite a number of long conversations. Dr Benjamin described this as one of the most extreme examples of thought disorder that he had seen in someone not admitted to hospital. Secondly, EBT has a well systematised delusional belief about his family interfering in negative ways in his life. The third element of the diagnosis is that EBT completely lacks insight into the fact that the above two factors are a disturbing problem with negative effects (such as being cut off from members of his family and a lack of other social outlets) for himself.
Dr Benjamin was at a disadvantage in addressing some questions because he had only met EBT on approximately 3 occasions. However, other witnesses described an increased level of depression, a dramatic weight loss (which had some positive effects) and increased hostility towards Mental Health Services staff including Mr Clarke. The two latter factors were confirmed by EBT’ own reports.
EBT does not believe that he has schizophrenia but does mention some paranoia and mild schizophrenic symptoms as part of a suite of conditions. He mentioned in his submissions a number of other conditions, such as chronic fatigue syndrome, irritable bowel syndrome, a sleep disorder, a cognitive impairment, reactive depression and anxiety. EBT argument was essentially that he has been suicidal for 20 years and that he is no more or less suicidal with treatment than without treatment.
While suicidality is a worrying aspect of EBT’ disease and the reason why EBT was brought to Dr Benjamin’s attention in August 2009, it was not the only feature of his illness that required treatment. Dr Benjamin included in the need for treatment also EBT difficulty in interpersonal interactions as a result of his formal thought disorder which in Dr Benjamin’s opinion restricted his quality of life dramatically, yet EBT sees no need for treatment of these symptoms. Dr Benjamin believes that treatment may address the formal thought disorder and enable EBT to have meaningful conversations with people.
EBT’ submission made references to ‘continuous pain and privation’ and notes that he has been suicidal for 20 years. He does not believe that treatment will have any effect on that state. He believed that psychiatric drugs may have been useful in the past mostly for their sedative effects. His submission variously stated:
“The drugs did keep me just well enough to survive for a long time I think, but aren’t needed now. Existence in misery is pointless and must be awful to watch for anyone with a caring or kind disposition. Such a life is only worthwhile if there is genuine hope, and after 20 years of drug therapy and no good result yet it must be sensible and rational to try something else.”
And
“Once a drug stops working for me it never works again. I’ve tried before now to return to previously helpful psychiatric drugs but they never work again for more than a few days and then make my symptoms much worse.”
And
“It was true that I was planning suicide but the circumstances of my life mean that depression is rational and logical and sensible. Not one of the last 23 years has been worth living unless I’m cured of my health problems. I’ve thoroughly and exhaustively tried psychiatric drugs for 20 years and life while on them is as I said worthless and awful and beyond hope. I need to find a different solution and family members and others have promised to help me do that. Thought disordered is false.”
He submitted copies of his PBS drug summary which proved that various antipsychotic drugs have been prescribed for him since 2004. EBT stated that one doctor in hospital had told him that he might have a personality disorder for which treatment is futile. He appears to have partially adopted that diagnosis judging by the statements in his submission. Sadly, EBT appears in his submissions to accept, on one hand, that he is destined for a miserable existence, but on the other hand he is seeking a reason to hope that things will get better. It is clear that the Mental Health Services team believe that there is good reason to hope that EBT’ circumstances will improve with treatment, but EBT does not see treatment as a path to recovery.
Dr Benjamin and EBT’ parents believed that EBT had been better whilst taking the drugs and had seriously deteriorated in mental health since ceasing those drugs. Because EBT does not view his current mental state as one requiring treatment, or capable of improvement with treatment, even though ceasing treatment has had devastating effect on his personal wellbeing, he is incapable of understanding the nature and effect of the proposed treatment. Therefore, he is incapable of giving a valid refusal to treatment with anti-psychotic drugs.
(ii) Is treatment in EBT’ best interests?
Firstly the Board notes from EBT’ submissions that his wishes, for the purposes of section 45(2)(a) of the Act, are that he not have the treatment.
Dr Benjamin gave evidence that if EBT is not treated, the consequences are that his positive symptoms (delusions) of schizophrenia will not be abated and his negative symptoms (apathy and depression) will also continue to be of concern. These symptoms present physical risks in his life and without treatment there will be a deterioration of his psychosis. While EBT would clearly disagree with that assessment, the Board was satisfied that without treatment there is little chance that EBT might revert to the better state of health that he was in two years ago.
Dr Benjamin was confident that the proposed treatment is the most effective treatment for EBT’ symptoms. He did not believe that any alternative treatments would be appropriate. A particular positive aspect of the proposed treatment is that it is the only injectable antipsychotic medication. Being injectable means that the drug has a reduced side-effect burden than oral medication. Additionally it is more reliable than oral medication. EBT’ was not advocating for any alternative treatment, only for the cessation of treatment.
Dr Benjamin gave evidence that the proposed treatment cannot be postponed on the grounds that (i) better treatment may become available or (ii) that LT is likely to become capable of consenting to the treatment.
Dr Benjamin outlined a number of possible risks associated with the proposed treatment. Because there are such risks, there will be a sample oral dose of Risperidone (Risperidal) administered orally to EBT followed by a period of observation to assess whether he is likely to have an immediate reaction to the drug. If there is no reaction, then injectable treatment would proceed according to the dosage prescribed. At that stage, EBT will be monitored by Mental Health Services staff for the emergence of any possible side effects. Most side effects can be treated if detected early.
The Board noted EBT’ strong objections to the imposition of treatment with antipsychotic drugs. Ultimately, however, it was satisfied that he is currently suffering miserably and without hope. Treatment with an antipsychotic offers to him a chance of abating that misery and regaining some hope of a better existence. The Board believes that he is unable to see that because of the effects of his illness. Therefore, we believed that it is in EBT’ best interests to have the proposed treatment.
Dr Benjamin did not advance any arguments pursuant to section 45(4) of the Act. Therefore this consent does not take effect until the appeal period under section 76 has expired or, if an appeal has been instituted, it is set aside, withdrawn or dismissed.

Conclusion:

After hearing an application by Dr R Benjamin for the consent of the Board to medical treatment for EBT of Hobart (hereinafter called the ‘patient’)

The Board was satisfied that:

the medical treatment is otherwise lawful, and
the patient is incapable of giving consent to the medical treatment, and
the medical treatment would be in the patient’s best interests

THE BOARD consents to medical treatment for the patient comprising the prescription by a qualified medical practitioner of an initial dose of 1mg of Risperidone to be administered orally and then up to 50mgs per fortnight of Risperidal Consta to be administered by intramuscular injection by a qualified health care professional
THE BOARD FURTHER ORDERS

That this consent is only valid on condition the Board receives 6 monthly reports from the applicant detailing:
(i)the suitability of the treatment and the dose,
(ii)whether there has been any improvement of the patient’s symptoms, and
(iii)whether or not the patient remains incapable of understanding the nature and effect of the treatment and that reliance upon this consent is still required.
That this consent does not take effect until the appeal period under section 76 has expired or, if an appeal has been instituted, it is set aside, withdrawn or dismissed.

Anita Smith
PRESIDENT

[2010] TASGAB 6

26 April 2010