IN THE MATTER OF PW (Guardianship and Management of Property)

[2017] ACAT 8

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

IN THE MATTER OF PW (Guardianship and Management of Property) [2017] ACAT 8

GT 237/2004

Catchwords:             GUARDIANSHIP – MENTAL HEALTH – ambit of treatment, care or support under a psychiatric treatment order – use of force to provide treatment – decision not to provide treatment – guardianship order to provide treatment, care or support outside the ambit of psychiatric treatment order – common law duty to provide treatment – human rights – whether forcible medication is in breach of human rights – whether treatment is within reasonable limits

Legislation cited:      Mental Health Act 2015 ss 58, 62, 65
  Guardianship and Management of Property Act 1991 s 7
  Human Rights Act 2005 ss 10, 28

Cases cited:Australian Capital Territory v JT [2009] ACTSC 105

Tribunal:                  Presidential Member G McCarthy

Date of Orders:  29 November 2016

Date of Reasons for Decision:         14 February 2017

ACT CIVIL & ADMINISTRATIVE TRIBUNAL       GT 237/200

IN THE MATTER OF

PW

TRIBUNAL:            Presidential Member G McCarthy

DATE:29 November 2016

ORDER

1. The Public Trustee and Guardian is appointed guardian for [PW] (the protected person) with the following powers: 

   (a)to decide where, and with whom the protected person is to live;

   (b)to give any consent required for a medical procedure or other treatment (other than a prescribed medical procedure); 

   (c)to make other personal decisions needed to ensure the protected person's health and welfare needs are met and to protect him from unreasonable risks to his health and welfare;

   (d)to do things necessary to give effect to decisions about the matters set out above, including (but not limited to):

   (i)     giving or receiving information; or

   (ii)     giving consent to investigations and assessments; or

   (iii)    participating in negotiations; or

   (iv)    signing documents.

2. The Tribunal will review this appointment on its own initiative before 28 November 2019.

3. The guardian must notify the Tribunal of any changes to the address of, or of any other significant change in circumstances of, itself or of the protected person.

   ……………Signed.......

   Presidential Member G McCarthy

   REASONS FOR DECISION

1. On 29 November 2016 I heard an application brought by Mr Shajimon, a social worker at Calvary Hospital, for appointment of the ACT Public Trustee and Guardian (PTG) as guardian for a person referred to in these reasons as ‘PW’.

1. In support of the application, the Tribunal received and took into account a Tribunal review report dated 17 November 2016 from Dr May Matias, psychiatrist, at the ACT Health, Calvary Older Persons Mental Health Inpatient Unit (OPMHIU), who attended the hearing.

1. At the conclusion of the hearing, I appointed the PTG as PW’s guardian but not for the reason the application was brought. In light of the complex issues that arose during the hearing, I said I would later publish my reasons for appointing the PTG and now do so.

PW’s condition

1. PW suffers from a mental illness. When I considered the guardianship application, PW was the subject of a psychiatric treatment order (PTO) dated 14 July 2016 made under section 58 of the Mental Health Act 2015 which had effect for six months unless sooner revoked. The Chief Psychiatrist was responsible under the PTO for the treatment, care and support provided to PW.[1]

   [1]Mental Health Act 2015, section 62(1)

1. Where a PTO had been made, the Chief Psychiatrist (or a delegate) was also required to determine in writing, among other things, whether PW required admission to an approved mental health facility[2] and the nature of psychiatric treatment to be given to PW.[3] PW was an inpatient at the OPMHIU.

   [2]Mental Health Act 2015, section 62(2)(a)

   [3]Mental Health Act 2015, section 62(2)(c)

1. Dr Matias explained that PW suffers from diabetes and arrhythmia meaning he has atrial fibrillation (AF),[4] in addition to mental illness. PW requires oral medication, twice daily, to manage his diabetes and AF but was refusing to take them. He was also refusing to allow treating staff to monitor his vital signs by means of an electrocardiograph, checking his blood pressure or taking blood samples.[5]

   [4] Transcript of Proceedings, page 4, line 23; report from Dr Matias dated 15 November 2016

   [5] Transcript of Proceedings, page 3, lines 44 – 45; report from Dr Matias dated 15 November 2016

1. There was no suggestion that PW had the mental capacity to refuse treatment for his diabetes and/or AF. Dr Matias explained that PW’s refusal was “definitely ... in the context of [his] chronic psychotic illness”.[6] In her report, Dr Matias explained:

His decision-making processes of not taking his medication is due to his delusional belief that he does not have any medical problems at all. Despite being on the maximal doses of antipsychotic medication ... he still has persistent delusions of transmitters in his teeth, chronic hallucinations and delusions of grandeur. When unwell he would be angry, agitated and non-compliant with all medications including depot.

[6] Transcript of Proceedings, page 3, line 40

1. Dr Matias answered “absolutely yes” when asked if the reason PW was refusing oral medications was “all bound up in his delusional state”.[7]

   [7] Transcript of Proceedings, page 5, lines 18 - 20

1. Dr Matias explained that PW:

steadfastly refuses [the oral medications] and it would be extremely distressing for him if we actually force him to have those medications orally. There is no other way of giving the proarrythmic medications in a depot form or in IV or injectables, so it’s just the logistics of it.[8]

[8] Transcript of Proceedings, page 4, lines 24 - 29

1. Dr Matias stated:

We find that we’re faced with it on a daily basis really because he has been refusing it and for us to administer it would mean he would have to be held down twice a day to have those oral medications and he is on a psychiatric treatment order and we haven’t been able to get him to a point where he is able to gain some insight, so we’re really in a bind at the moment.[9]

[9] Transcript of Proceedings, page 5, lines 4 - 8

1. Dr Matias continued:

Over the last week, which is basically a good relief for us, under our obligation to treat him we have been hiding the medications in his yoghurt and so far he has been taking that, but my guess is that one of these days he might catch on to that and we’ll be running out of options in hiding it in his food or one way or another and that’s going to be a problem.[10]

I think in the case of [PW], if we’re going to enforce it twice a day and opening his mouth and giving it to him, I think that would be a breach of human rights. I think that could cause him significant distress and maybe even precipitate a heart attack.[11]

[10] Transcript of Proceedings, page 10, lines 28 - 32

[11] Transcript of Proceedings, page 11, lines 18 - 21

1. In her report dated 17 November 2016, Dr Matias wrote:

We are trying our best to deliver [oral medications] surreptitiously through his food/drink with variable success. However, since he remains untreated medically, he is a greater risk of morbidity and mortality  ... His risk is escalating with time, the risk includes sudden death.

We could increase the antipsychotics which will also increase his risk for Ventricular tachycardia and death.

Therefore the application for emergency (sic) guardianship with respect to the dilemma we are facing above and the unusual request of the medications not to be administered if undue force is required to implement this. (sic)

1. Dr Matias confirmed at the hearing that she sought the appointment of the PTG as guardian:

for the purpose of [the PTG] making a decision not to provide any treatment to [PW], i.e. that medications [for PW’s diabetes and AF] not be administered.[12]

[12] Transcript of Proceedings, page 3, lines 15 - 21

1. PW’s circumstances clearly presented his treating doctors with very difficult clinical decisions to be made, but doctors often need to weigh up competing risks to a patient when deciding upon appropriate treatment. Unfortunately, sometimes these competing risks can be extreme. Dr Matias agreed that when formulating PW’s treatment plan it was necessary to consider issues holistically and to work out the best way forward by reference to all of the competing issues.[13]

   [13] Transcript of Proceedings, page 21, lines 6 - 18

1. I accepted without question that Dr Matias and others concerned with PW’s medical needs were doing the best they could to provide him with the best possible treatment, having regard to these competing risks. I respected also that the application for guardianship was brought out of concern that all treatment, care or support provided to PW was lawful, especially in the manner it was being provided.[14]

   [14] Transcript of Proceedings, page 3, lines 38 - 41

1. In her earlier report dated 15 November 2016 in support of the guardianship application, Dr Matias wrote:

[PW] has no decision-making capacity. He continues to refuse oral medications despite our repeated attempts and outside undue force, the practicality of making him take oral medications for his cardiac and diabetic health is not sustainable and [is] inhumane.

Therefore the application for guardianship is being made as these decisions outside psychiatric treatment fall outside the bounds of his PTO.

The scope of the PTO

1. I acknowledged PW’s difficult and conflicting clinical circumstances, but whether to provide PW with oral medications using force to treat his diabetes and AF was a clinical decision for his treating doctors. For the reasons that follow, I was not persuaded that such treatment was (or would be) outside the bounds of the PTO.

1. The PTO authorised PW’s treating doctors to provide him with treatment, care or support not only to remedy his mental illness per se but also to lessen its ill effects and any pain or suffering that it was causing. Such is clear from the definition of “treatment, care or support” in the Dictionary to the Mental Health Act 2015 which states:

treatment, care or support, for a mental disorder or mental illness—

(a)    means things done in the course of the exercise of professional skills to remedy the disorder or illness or lessen its ill effects or the pain or suffering it causes; and

(b)    includes the giving of medication and counselling, training, therapeutic and rehabilitation programs, care or support.

Examples—rehabilitation support

1              support to improve social confidence and integration

2              assistance to improve work skills

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

1. PW’s mental illness was not only a problem in itself. His “delusional belief that he does not have any medical problems at all” was also having the “ill effect” of him refusing medication to treat his diabetes and AF. PW’s mental illness was also causing him pain and suffering in the sense that the distress of receiving his medication was all bound up in his delusional thinking. Put another way, PW’s life-threatening risks arising from his diabetes and AF, if left untreated, were “ill effects” of his mental illness. Arising from the Dictionary definition of “treatment, care and support”, the PTO authorised “things done ... to lessen [those] ill effects”, namely twice daily oral medications if that is what the treating doctors determined should occur in the “exercise of [their] professional skills”.

1. In my view, where PW was an inpatient at the OPMHIU, being an approved mental health facility, the Chief Psychiatrist (or his delegate) was also entitled under the PTO to use force, within statutory limits, to administer those oral medications.

1. Section 65(1) of the Mental Health Act 2015 provides:

65Powers in relation to psychiatric treatment order

(1)This section applies if a psychiatric treatment order has been made in relation to a person and—

(a)a restriction order has also been made in relation to the person requiring the person to be detained at a stated place; or

(b)the chief psychiatrist makes a determination under section 62 (Role of chief psychiatrist—psychiatric treatment order) requiring the person to be admitted to an approved mental health facility; or

(c)       the person is detained at an approved mental health facility under section 77 (Contravention of mental health order).

1. In PW’s case, section 65 is applicable because a PTO has been made and the Chief Psychiatrist has made a determination under section 62 that PW be admitted to an approved mental health facility, namely OPMHIU.

1. Section 65(4) of the Mental Health Act then provides:

(4)If the chief psychiatrist determines that a person be given medication for the treatment of the person’s mental illness, the chief psychiatrist may—

(a)approve the giving by appropriately trained people of medication prescribed by a doctor in accordance with the chief psychiatrist’s determination; and

(b)use, or authorise someone else to use, the force and assistance that is necessary and reasonable to give the medication (forcible giving of medication).

1. In my view, under section 65(4)(b), the Chief Psychiatrist (or his delegate) was entitled to use or authorise someone else to use the force and assistance that was necessary and reasonable to give oral medications[15] (if PW’s treating doctors determined that that was necessary and should occur) to treat PW’s diabetes and/or AF because his refusal to accept medications to treat those ailments was “due to his delusional belief that he does not have any medical problems at all”. In other words, the refusal and the consequent heightened risks to PW’s health were ill effects of his mental illness.

   [15]Mental Health Act 2015, section 65(4)(b)

1. The PTO did not (of course) extend to determining the kind and/or dosage of medications to treat PW’s diabetes and/or AF: that was for others with the appropriate skills. But the PTO did permit involuntary administering of those medications (as prescribed by others) because PW’s refusal to accept those medications was due to his delusions i.e. his mental illness.

1. This scenario periodically occurs. Mental illness often influences and sometimes directly causes adverse behaviour, for example delusional refusal of nutrition or hydration, self-harm or (as in this case) refusal of medications for other ailments. It is apparent in my view that a PTO authorises treatment, care and support to remedy not just the person’s mental illness per se but also its medical consequences for the person.

1. I recognise that section 65(4) refers to medications “for the treatment of the person’s mental illness”, which raised the question whether section 65(4)(b) should be construed narrowly to apply only to treatment of the illness per se, or more broadly to include medications for treatment of any ill effects and any pain and suffering it is causing.

1. Whilst the point was not raised or argued at hearing, two matters led me to conclude that the broader view should be preferred.

1. First, a precondition to making a PTO at all is that the person is refusing “treatment, care or support” as defined,[16] which includes treatment of the mental illness’s ill effects and the pain and suffering it is causing. It would be illogical and incongruous in that circumstance to construe section 65(4)(b) as permitting the use of forced medication to treat the mental illness, but not its ill effects or the pain and suffering it is causing. Such an approach would defeat an available reason (among others) for making the PTO, namely the refusal of treatment.

   [16]Mental Health Act 2015, section 58(2)(b)

1. Section 65(4)(b) should not be construed to produce such a result. Rather, the words “treatment of the mental illness” should be interpreted to apply to the scope of involuntary treatment that can be provided under the PTO. The purpose of section 65(4)(b) is to place limits on the “forcible giving of medication” where medication is part of that treatment regardless of whether the medication is to treat the mental illness per se or its ill effects or any pain and suffering it is causing. Those limits include:

(a)one of the circumstances in section 65(1) must apply. (In PW’s case, he has been admitted to an approved mental health facility);

(b)the medication must be prescribed by a doctor; and

(c)the force or assistance must be “necessary and reasonable” in order to give the medication.

1. Second, in my view section 65(4) refers to “treatment” rather than “treatment, care or support” because the section is about provision of medication: the words “care or support” are inapt in the context of medication.

1. Referring to Dr Matias’ other concern, I was not persuaded that the use of “force and assistance that is necessary and reasonable to give medication” would breach PW’s human rights under the Human Rights Act 2005 or otherwise. I recognise that section 10(2) of the Human Rights Act provides that “no-one may be subjected to medical ... treatment without his or her free consent”, but section 28(1) provides that “human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society.”

1. Although the question was not argued, I had no reason to doubt that treatment, care or support provided under section 58 or treatment under section 65 of the Mental Health Act would be “within reasonable limits set by laws”,[17] having regard to the several criteria concerning curtailment of the subject person’s rights and freedoms that must be met under section 58 of the Mental Health Act before a PTO can be made and the limits on the use of force or assistance imposed under section 65(4)(b) as described in paragraph 30 above.

   [17]Human Rights Act 2004, section 28

1. That accords with the comments of ACT Supreme Court, per Higgins J (as he then was), in Australian Capital Territory v JT [2009] ACTSC 105 at [39] and [63] where his Honour said:

39. It is apparent that enforced medication of a mentally ill patient is not a breach of the Human Rights Act (see Re S [1992] 1 NZLR 363).

...

63. It is not a relevant consideration in the present case that the Territory’s relevant care providers would find the provision of care distressing and believe it to violate JT’s s 10 rights to humane treatment. They remain under a duty to give competent and effective treatment despite that concern.

1. I add that the Court’s comments in JT were in the context of forced feeding and hydration, rather than forced antipsychotic medication, to address JT’s refusal of food because of his delusional belief that he did not need to eat or drink because God would not let him die.

1. The Court in JT at [64] – [65] added:

64. If JT was competent to refuse treatment the situation would be otherwise. He is not. Thus the Territory is no more entitled to refuse treatment to JT than any other person in its care who is unable competently to refuse it.

65. It remains, of course, a matter of clinical judgment whether any proposed course of treatment would be medically feasible.

1. Likewise, I did not, and should not, make any comment about how PW’s treating doctors should manage the competing considerations arising from his mental illness, diabetes and AF or the competing risks arising from forced oral medication or not administering such medication: that was for their professional judgement.[18]

   [18]Section 57 of the Mental Health Act prohibits the Tribunal, in making a mental health order, from ordering a particular form of treatment, care or support

1. I accept that administering oral medications by means of “coaxing, cajoling and persuading”, as a psychiatrist at OPMHIU recently described it to me in another matter, will be preferable to the use of force.

1. I accept too that the use of force is unlikely to be “necessary and reasonable” until those other techniques have been tried and have failed, and unless the medications remain (on balance) necessary notwithstanding the person’s refusal to accept them and where the refusal arises from the person’s delusions.

1. However, these are all matters for the Chief Psychiatrist (or his delegate) to weigh up when determining whether the proposed force or assistance is “necessary and reasonable”. In this case, it was for PW’s treating doctors to decide whether PW’s overall health, after weighing up competing concerns, would be best served by forcibly providing or not providing him with oral medications to treat his diabetes and/or AF.  My concern was only whether to do so would be within the scope of the PTO: in my view it would.

1. I add only the caveat that PW’s treating doctors could not elect not to provide PW with oral medications solely because he refuses them in circumstances where that refusal “is all bound up in his delusional state”. In JT at [18], [29] and [69] Higgins J said:

18. The truth is that JT lacks the capacity for informed consent and his ‘wishes’ are the product of delusional and irrational thought in turn the product of his severe mental illness. The approach to his care can be no less than would be the case if he lacked consciousness or was a helpless infant.

29. The patient here lacks both understanding of the proposed conduct [meaning artificial feeding by naso-gastric tube] and the capacity to give informed consent to it. Thus, those charged with JT’s care remain under the common law duty to provide that care to the best of their skill and ability.

62. ... [Treatment is not] rendered futile by the prospect that the patient, driven by the underlying psychosis that creates his incompetence to give or refuse consent, will resist the treatment. Overcoming such resistance is an ordinary incident, though a distressing and confronting one, of emergency care. It does not usually indicate an informed consent to the denial of medical treatment.

1. For these reasons, I was not persuaded that I should appoint the PTG for the purpose of him (or his delegate) making a decision not to provide oral medications to treat PW’s diabetes or AF. The PTO authorises the Chief Psychiatrist to provide PW with treatment, care or support and, per the definition, in the manner that treating doctors and others determine in “the exercise of [their] professional skills”. Whether to provide oral medications (with force that is necessary and reasonable) was a decision for the treating doctors that could and should be made under the PTO: it was not a decision to leave for the PTG.

1. The question then arose whether there was a need for the PTG to be appointed as PW’s guardian at all. Ms K Nicholls who appeared for the PTG properly referred me to section 7(1) of the Guardianship and Management of Property Act 1991, which states the matters about which the Tribunal must be satisfied in order to appoint a guardian for a person. In particular, the Tribunal needs to be satisfied that there is or is likely to be a need for a decision in relation to matters concerning the person’s health or welfare and that if a guardian is not appointed those needs will not be met or the person’s interests will be significantly adversely affected.

1. No such decisions needed to be made to the extent that PW’s health and welfare needs could already be met under the PTO or under his treating doctors’ common law duty to preserve life. [19]

The need for a guardianship order

[19]Australian Capital Territory v JT [2009] ACTSC 105 at [46] – [49] and [63]

1. Concerns were then expressed about the suitability of PW’s present accommodation at a nursing home, a possible or likely need for alternative accommodation and a likely need for decisions to be made concerning his health and welfare arising from his age and frailty - not from his mental illness. Actions to address these concerns could not, in all probability, be taken under the PTO or a doctor’s common law duty to provide care.

1. To address these concerns I appointed the PTG, who already holds an appointment as PW’s manager, to be his guardian. I was also concerned about the need to remove uncertainty among staff at OPMHIU or at PW’s nursing home about whether actions from time to time could be lawfully taken under the PTO. Such uncertainty could be avoided by empowering the PTG to make decisions on PW’s behalf concerning where he is to live and treatment he should receive to address health concerns that are (or might be) unrelated to PW’s mental illness.

………………………………..

Presidential Member G C McCarthy

HEARING DETAILS

FILE NUMBER:	GT 237/2004
PARTIES, CHIEF PSYCHIATRIST:	Dr M Matias
PARTIES, ACT PUBLIC ADVOCATE:	Ms L Rogers
PARTIES, PUBLIC TRUSTEE AND GUARDIAN	Ms K Nicholls
OLDER PERSONS MENTAL HEALTH UNIT	Ms C Baxter
TRIBUNAL MEMBER	Presidential Member G McCarthy
DATE OF HEARING:	29 November 2016