HFS (Medical Consent)

[2007] TASGAB 12

GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON

H.F.S., on the application of Dr S Alempijevic

Neutral Citation: HFS (Medical Consent) [2007] TASGAB 12

REASONS FOR DECISION

Philippa Whyte (Member)

Hearing Date: 9^th  November 2007

Application for consent to medical treatment – notice of hearing – discretion to dispense with notice period if matter is urgent – best interests – need for support and representation in hearing

Guardianship and Administration Act 1995 – s6, Part 6, s69(3)(b)

This is an application under Part 6 of the Guardianship and Administration Act 1995 for consent to medical treatment for H.F.S. by his treating doctor Dr S Alempijevic.

H.F.S. is currently the subject of a Continuing Care Order made under the Mental Health Act 1995 by virtue of which he may be detained until 8 January 2008.

According to the application H.F.S. has been hospitalised and involuntary patient since 7 October 2007. It is common ground that throughout that time he has continued to decline either treatment for, or assessment of, his mental condition.

Pursuant to section 69 of the Guardianship and Administration Act 1995 a person in respect of whom a hearing is to be held must be given at least 10 days notice of that hearing. Pursuant to subsection 3(b) of that section this period of notice can be dispensed with where the matter relates to the provision of medical treatment and the Board considers it proper to dispense with notice of the hearing by reason of urgency.

The current application was made on Thursday 6 November 2007. It was noted in the application that it was urgent. This hearing was convened at 10.00am on Friday 7 November 2007.

It is therefore clear that H.F.S. has not been given notice of the hearing in accordance with section 69 of the Guardianship and Administration Act 1995. A preliminary issue therefore, to be determined by the Board, is whether it is appropriate for that period of notice to be dispensed with to enable the hearing to proceed. For this to occur, the Board needs to be satisfied that it is proper to do so “by reason of urgency”.

In relation to the issue of urgency the application form invites the applicant to advise reasons why allowing 10 days notice before the hearing would not be in the best interests of the patient.  In response to this Dr Alempijevic has advised that H.F.S. was “currently inpatient on 1E under CCO refusing medication and investigation”.  

The legislation does not specify reasons of urgency but it is noted that the application form suggests that the question of urgency will be determined by reference to the person’s best interests and indeed, section 6 of the Guardianship and Administration Act1995 specifies that a function conferred by the Act is to be performed so that the best interests of a person in respect of whom the application is made are promoted. In this regard it is important to note that consideration of a person’s best interests are not limited solely to a consideration of the person’s medical needs. The Board must take into account the need to protect a person’s civil and statutory rights (ie the right to receive adequate notice of a hearing) and weigh this up against other consequences of delaying the hearing until the appropriate period of notice has elapsed.

Dr Alempijevic advised at the hearing that the reason she considered the hearing was urgent was because H.F.S. had already been detained for a significant period of time without treatment and that to delay the hearing for a further 10 days would delay what she considers to be appropriate and necessary treatment for a further 10 days. She also advised that she did not believe that that delay would result in any deterioration in H.F.S.’s mental state.

When the Board indicated that, in the absence of H.F.S. suffering undue distress or anxiety or in the absence of a prognosis of his health deteriorating further, a delay in treatment of 10 days may not amount to “urgency” Dr Alempejevic suggested that H.F.S. be invited to agree to dispense with the notice required under section 69. In response to this the Board questioned whether, given it was alleged in the application that H.F.S. lacked capacity to consent to treatment, it would be appropriate to rely on his consent to abridge time. Dr Lampe submitted that there was a difference that a person could be capable in some areas and not others. Either way, when asked, H.F.S. advised that there were a number of people with whom he did wish to discuss this current application and, in the event that the hearing was adjourned, he intended to do this.

Dr Lampe advised that she did not believe H.F.S. was capable of following these actions through, that he had talked about advocates and friends before but had been unable to follow through. Dr Lampe advised that whilst she did not think H.F.S. condition was deteriorating she did not think he was capable of making decisions regarding medication or treatment or of arranging advocacy and support for a hearing. She advised that H.F.S. had a history of absconding and that whilst he remained unmedicated this risk remained higher. 

Mrs S (H.F.S.’s mother) advised that she considered it cruel for her son to be locked up in hospital without treatment and questioned why the application to the Guardianship Board had not been made sooner. The hospital response to this was that they had needed this time to establish his non compliance before making the application.

Mr S. (Snr) advised that he had some difficulty with continuing with the hearing in the absence of his son having been given adequate notice. He indicated that whilst he believed medication was necessary he did not believe his son should be denied his right to receive appropriate notice of the hearing. He advised he had concerns as to whether his son had received adequate information as to his diagnosis and proposed treatment to enable him to make an informed decision about treatment.

Mr Harvey (RN) advised that his observation of H.F.S. on the ward was that he was quite relaxed the majority of the time. That he did not appear to be displaying any great distress or anxiety and was not behaving in a way that presented a danger to himself or others.   

The Board acknowledges that, in the absence of either H.F.S. or his person responsible consenting to treatment, adjourning this application for the period of 10 days delays this issue, and possible treatment for that period of time. The Board is however constrained by the legislation which provides for this period to be truncated only by reason of urgency.  In light of the evidence that H.F.S.’s mental state is unlikely to deteriorate if he remains unmedicated over the ten days, and in light of evidence that he is not currently experiencing distress as a consequence of his condition nor exhibiting behaviour which renders him a risk to himself or others, the  Board  is not satisfied that the this matter is sufficiently urgent to dispense with  H.F.S.’s right to receive notice of the hearing and to arrange for support and representation if he desires.

As a consequence the hearing is adjourned until Monday 29 November at 2.00pm.

It is noted that the treating team is at liberty to apply for an urgent hearing prior to that date if the circumstances require.

It is also noted that H.F.S. has indicated that he wishes to discuss this matter with an advocate and/or friends and as such steps should be taken by the hospital to assist him in following through those wishes.

Philippa Whyte
Presiding Member