FXU

[2019] NSWCATGD 38

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FXU [2019] NSWCATGD 38

Hearing dates:

18 September 2019

Date of orders:

18 September 2019

Decision date:

18 September 2019

Jurisdiction:

Guardianship Division

Before:

J Moir, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
Dr M A Smith OAM, General Member (Community)

Decision:

The Tribunal consents to the following medical treatment being provided to FXU:

removal under general anaesthetic of indwelling Portacath and 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 three days from the date of this order.

Catchwords:

CONSENT TO MEDICAL TREATMENT – patient a “detained person” under the Mental Health Act – inpatient at a public hospital – diagnosed with borderline personality disorder – proposed treatment to remove Portacath – patient not able to provide consent – patient heavily sedated while undergoing opioid withdrawal – person responsible not willing to consent to the proposed treatment – serious risk to the patient if treatment is not carried out – consent given.

Legislation Cited:

Guardianship Act 1987 (NSW)), ss 4, 33(2), 42(2), 44(2); Pt 5

Mental Health Act 2007 (NSW)

Cases Cited:

None cited.

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

002: Consent to Medical or Dental Treatment

FXU (the person)
NZQ (applicant)

Representation:

Nil.

File Number(s):

NCAT 2016/00391680

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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

MEDICAL CONSENT

Background

1. FXU is a 25-year-old woman who is currently an inpatient at a public hospital. At the time of the application and hearing she was sedated and intubated in the Intensive Care Unit, under the care of NZQ, undergoing opioid withdrawal because of reported opioid dependence from prescription medication. FXU is also a “detained person” under the terms of the Mental Health Act 2007 (NSW). She was reported to have been diagnosed with borderline personality disorder and to regularly self-harm and attempt suicide. FXU is also reported to have a gastro-enterological problem (gastric pariesis).

2. On 18 September 2019 the Tribunal received an application from NZQ, asking for the Tribunal’s consent to a procedure to remove an indwelling Portacath from FXU. The Tribunal conducted the hearing on an urgent basis given the circumstances.

3. These reasons for decision arise from the hearing of that application.

The hearing

4. The hearing was held by telephone from Sydney and the participants were all at the hospital. The Tribunal spoke to NZQ, Dr Z, the Medical Director of the public hospital, Mrs Y, (FXU’s mother) and Ms X, a friend of Mrs Y, who was at the hospital with her.

5. The Tribunal was advised that FXU was unable to participate in the hearing because she is sedated and is likely to continue to be for at least the next two days, whilst she undergoes the opioid withdrawal. The procedure for which consent was being sort was regarded by her treating team to be urgent, and on this basis the Tribunal accepted that the hearing should proceed urgently, without her participation.

What did the Tribunal have to consider?

6. When considering an application for consent to medical treatment, the Tribunal must be satisfied that it is appropriate for the treatment to be carried out.

7. In considering the above questions, the Tribunal must have regard to the views of FXU, NZQ and Mrs Y, who is the “person responsible” (s 44(2) of the Guardianship Act 1987 (NSW)) and the objects of Pt 5 of that Act, as well as the Principles of the Guardianship Act which place the welfare and interests of the person (FXU) as the paramount concern (s 4).

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

Is FXU incapable of providing consent to the proposed treatment?

9. 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.

10. The Tribunal noted the undisputed evidence that at present, and likely for at least the next few days FXU is sedated and intubated in the intensive care unit. On this basis alone she is not able to provide her own consent to the proposed treatment. There was some dispute amongst the participants about whether FXU would be able to provide valid consent on her own behalf (or withhold consent), were she not sedated, however, the Tribunal did not need to make a finding in relation to this. If the proposed treatment is urgent, as the Tribunal was advised, then it is not relevant that FXU may at some point in the future be capable of providing her own consent.

What is the particular condition of the patient that requires treatment?

11. For the last 12 months or so FXU has had an indwelling Portacath for the administration of intravenous medications. A report from 6 September 2019 from Dr W, Interventional Radiologist at the public hospital, states that a “cautious angiogram” had been performed, and that this showed that the Portacath tubing is “embedded in the wall of the RV (right ventricle) with parenchymal staining on injection more so than would be expected for a simple fibrin sheath”.

12. NZQ told the Tribunal that this indicates that the Portacath is malpositioned, and that this creates a serious risk to FXU of arrhythmia possibly leading to cardiac arrest.

What are the reasons for the proposed treatment and why is it proposed that the treatment should be carried out?

13. It is proposed that removing the Portacath will remove the risk posed to FXU by it being malplaced.

What are the alternative options for treatment that are available?

14. It has been suggested that it may be possible to adjust the Portacath to try and move it into the correct position. Dr W refers to this in his report of 6 September 2019. However NZQ explained that this procedure carries a higher risk to FXU because it is more complex, may not be successful and requires a wire to be inserted through a vein in her groin, to manipulate the Portacath from inside her heart. The proposed treatment is simpler, and involves withdrawing the Portacath back through the artery via which it was inserted.

15. The other alternative is to leave the Portacath in situ for the time being. It is not clear how long it has been malpositioned and FXU is sedated in ICU, under close supervision. NZQ explained that now they know that it is malpositioned, and creating a serious risk to FXU, it is wrong not to deal with it as soon as possible. FXU already has an irregular heartbeat for which she takes medication and so is likely at a higher risk of arrhythmia. NZQ did not consider that it was a safe option to do nothing.

Are there any risks associated with the proposed treatment?

16. The application notes that the risk of the proposed treatment is the possibility of some bleeding on removal, which, if it occurs, is usually minimal.

17. Mrs Y said that she considered that it was likely that FXU would be extremely distressed to hear that the Portacath had been removed (and not replaced) and that this may contribute to her self-harming or attempting suicide.

18. Dr Z and NZQ noted that FXU’s mental state has been very volatile for some time and that she makes very frequent suicide attempts, which sometimes involves using the Portacath. It seemed that they did not accept that the risk of removing the Portacath would be likely to significantly increase FXU’s risk of self-harm or suicide, which is already very high.

19. The Tribunal noted medical notes from Dr V, Medical Director, Psychiatry, at the public hospital, dated 17 September 2019. This states “[FXU] continues to present with extreme regularity and extreme aggression/suicidality. Now in ICU sedated and intubated again to manage risk. Unable to stop making suicide attempts every few days.”

20. This would seem to support the view that whilst removal of the Portacath may be distressing for FXU, given her already very vulnerable and volatile state, it may not increase her risk of further attempts at self-harm or suicide.

Is the proposed treatment the most appropriate treatment?

21. Given the alternatives put forward, the proposed treatment would seem to be the most appropriate treatment to reduce the risk to FXU from the malpositioned Portacath.

What are the views of FXU?

22. FXU was unable to express a view because of her current medical state. Her mother told the Tribunal that she would be very distressed if the Portacath was removed as she had received great benefit from having medications to treat her gastric paresis administered in this way throughout the last year. Her mother reported that this had gone some way to assisting her daughter to have a “normal” life. She was very concerned that her daughter may attempt suicide once she becomes aware that it has been removed. She said that in her view FXU would not agree to having the Portacath removed, even if the risks of it remaining in place were explained to her.

What are the views of NZQ?

23. In summary, NZQ considers the proposed treatment is necessary because the malpositioned Portacath poses an unacceptable and unnecessary risk to FXU. He explained that at present FXU has a central line in situ and intravenous medications can be administered through this, which means that the Portacath is not currently needed. He explained that now the risk of cardiac compromise has been identified, it is not in FXU’s best interests not to act on this information and resolve the problem. The proposed treatment will occur within the next two days if consent is given.

What are the views of Mrs Y?

24. In summary, Mrs Y (and her friend Ms X) agreed that the Portacath should be removed, but would only agree to this on the condition that a new Portacath was immediately inserted in its place. As noted above, FXU was very concerned about her daughter’s response to its removal, and expressed dismay about having to try and manage her daughter’s needs without it once she is discharged from hospital.

Other relevant information

25. Mrs Y and her daughter’s treating team disagree about whether a Portacath is medically indicated, irrespective of the fact that the current one is malpositioned. It is most unfortunate that the issue of the proposed removal of the malpositioned Portacath was, for Mrs Y, inextricably linked with the question of whether a new one should be inserted, as this was not something the Tribunal could determine.

26. The treatment NZQ has asked the Tribunal to consent to, is the removal of the existing malpositioned Portacath. He has not asked the Tribunal to consent to inserting a replacement Portacath. He does not currently think this is necessary.

27. The legislation does not require an application for consent to medical treatment to be lodged by a person’s doctor, so in theory Mrs Y could ask for the Tribunal’s consent to the insertion of a new Portacath. However even if the Tribunal considered this was appropriate treatment for FXU (and the Tribunal has formed no view either way on this question), the Tribunal’s consent to medical treatment is redundant unless there is a practitioner who is willing to perform the treatment/procedure. The Tribunal cannot require a practitioner to perform a medical procedure or offer treatment which the practitioner does not consider to be warranted.

28. For this reason, Mrs Y’s position that she would only agree to the removal of the malpositioned Portacath on the condition that a replacement was immediately inserted, was not something the Tribunal was able to make a decision about. What her position did mean, however, was that given that she, as her daughter’s person responsible, was not willing to consent to the procedure, the Tribunal was obliged to consider whether or not to do so.

Decision

29. Having considered all of the evidence, the Tribunal was satisfied that it is appropriate and consistent with FXU’s welfare and interests that the proposed treatment be carried out. The Tribunal consented to the removal of the malpositioned Portacath under general anaesthetic. The consent is valid for a period of three days from the date of the order.

30. The Tribunal’s decision has no bearing on the question of whether a Portacath is or is not required in FXU’s case.

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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: 26 September 2022