KLD (Consent to Medical Treatment)
[2012] TASGAB 34
•16 November 2012
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
KLD – Application for consent to medical treatment by Mental Health Services
KLD (Consent to Medical Treatment) [2012] TASGAB 34
REASONS FOR0 DECISION
Anita Smith (President)
Date of hearing: 16 November 2012
Consent to medical treatment – whether injectable doses of antipsychotic drug (supplemented by an oral dose in initial stages) are in the person’s best interests – urgency of the application and treatment
Guardianship and Administration Act 1995 s. 36, 44, 45, 69(3)
On 14 November 2012, the Board received an application from Dr. Natasha Laukens of the Wilfred Lopes Centre (a secure mental health facility) seeking consent to medical treatment for KLD. Consent is sought for fortnightly injections of Risperidone Consta up to a maximum of 50mgs per fortnight and up to 6mgs Risperidone per day administered orally for 8 weeks.
KLD is a 33 year old man who migrated to Australia from [his country of birth] 10 years ago. He has one cousin in Australia from whom the treating team did not seek consent as ‘person responsible’. He was a prisoner at the time of the hearing, having been transferred to the Wilfed Lopes Centre for part of his sentence.
When the Board receives and application for consent to medical treatment, it must be satisfied of the tests in Part 6 of the Guardianship and Administration Act 1995 (the Act) which are set out in section 45 as follows:
Whether:
(a) the proposed medical treatment is otherwise lawful; and
(b) KLD is incapable of giving consent (as defined in section 36, namely whether he is incapable of understanding the general nature and effect of the proposed treatment)
(c) the medical treatment would be in KLD’s best interests.For the purposes of determining whether the proposed medical treatment would be in KLD’s best interests, matters to be taken into account by the Board include:
(a) KLD’s wishes, and
(b) The consequences to KLD if the proposed treatment is not carried out; and
(c) any alternative treatment available to that KLD; and
(d) whether the proposed treatment can be postponed on the ground that better treatment may become available and whether KLD is likely to become capable of consenting to the treatment.
Notice of the hearing:
The applicant contended that the application was urgent because Mental Health Services needed to establish a treatment regime before KLD is released from the Wilfred Lopes Centre on 24 November 2012. The urgency of the application was not contested by counsel for KLD and the Board considered that release from the Centre reflects KLD’s wishes, his best interests and the least restrictive alternative, so the Board dispensed with the full notice period pursuant to section 69(3) of the Act.
The hearing was convened at the Wilfred Lopes Centre on 16 November 2012. Present at the hearing were KLD, his counsel Sarah Campbell from the Legal Aid Commission of Tasmania and Dr. Pei Lim for the applicant. The only documentation that the Board had was the application, which was also supplied to counsel.
Formal matters:
The Board was satisfied, for the purposes of section 44(1), that the applicant, as treating practitioner, has a proper interest in the matter.
The treatments proposed are approved treatments in regular usage for people with psychotic illnesses. The Board was satisfied that the treatments are ‘otherwise lawful’ for the purposes of section 45(1)(1) of the Act.
KLD’s counsel did not contest evidence that he has a disability, namely paranoid schizophrenia, a diagnosis that has been consistent over 10 years. On the basis of the applicant’s report and Dr. Lim’s evidence at hearing, the Board was satisfied for the purposes of section 36(1) that KLD is a person with a disability.
Does KLD lack the capacity to understand the nature and effect of the treatment?
The application stated as follows:
“KLD has poor insight into his illness. He doesn’t believe to have a mental illness (sic) and attributes his symptoms to physical problems or alcohol use. He objects to treatment based on delusional grounds that medication will impact on his alertness and ability to protect himself from those following him. He believes that his psychosis is caused by an unspecified persecutor who ‘infected’ him in his sleep in 2009. As a result he stays up all night to protect himself and is currently distressed. The tenacity of his chronic persecutory delusions have impacted on his ability to believe that the information given to him about the illness. Consequently, he is unable to weigh up the risk and benefits of taking/not taking medication. He will only take oral Risperidone 2mg which is inadequate to control his illness. He is fearful of being harmed if he is too sedated. Compliance in the community has been erratic, hence, depot is proposed.”
Dr. Lim’s evidence at the hearing was similar to this statement by Dr. Laukens. She said that KLD’s insight into his illness is ambivalent at best. He is unable to think rationally, is distressed and has experienced a decline in his cognitive functioning. In the latter respect, Dr. Lim was referring to the fact that KLD was previously successful at tertiary study but would not presently be capable of this.
KLD disputed the evidence regarding his capacity. He believed that a daily oral dose of 2mg Risperidone makes him function effectively, but higher doses make him too sleepy. He stated that he has a fear of injections.
Dr. Lim responded that for his weight and height, and having an entrenched illness, 2mg daily is completely inadequate to treat that illness. The Board accepted the evidence of the treating team with respect to KLD’s capacity to understand the nature and effect of the treatment.
Is treatment in KLD’s best interests?
Section 45(2)(a) - KLD’s wishes were to stay on the dosage of 2mg per day and he was concerned that any increase would end his life.
Section 45(2)(b) - KLD had been transferred from the Prison to the Wilfred Lopes Centre. His custodial sentence ends on 24 November 2012 and thereafter he will be on a probation order for 9 months with conditions that he comply with directions from the Community Forensic Mental Health team. He is also on a Community Treatment Order under the Mental Health Act 1996. There was a concern that release without an effective treatment option would enhance the possibility of him self-medicating his illness with alcohol which increases his risk of re-offending. Dr. Lim emphasised that the goal of the treating team was to improve his quality of life and reduce his risk of reoffending. She was also concerned that the consequences of not treating to the degree sought in the application would be that he remains subject to these distressing persecutory fears.
While the main objective of treatment is to have KLD on an injectable dose, such injections take some time to reach a therapeutic level, hence there is a need to supplement an injection regime with an oral treatment regime until such time as the drug reaches therapeutic levels. For that reason, the application for consent related to both oral and injectable treatments.
KLD did not consider there would be any adverse consequences from remaining on 2mg daily dosage.
Section 45(2)(c) – Dr. Lim gave evidence that the only treatment available for KLD is with anti-psychotic drugs. The Board investigated with Dr. Lim whether some of KLD’s fears about sleeping and sedation came from his experience as a refugee from [his country of birth] and whether treatment for post-traumatic stress disorder (PTSD) might be more appropriate. Dr. Lim stated that PTSD is not indicated. She also stated that treatment with oral medication is not a suitable alternative to injectable medications as KLD is not reliable in taking oral medications. He consistently defaults on medications and appointments and his illness is poorly treated when there is not the certainty of delivery that an injectable medication can offer.
The alternative treatment offered by KLD was an oral dose of 2mg daily which has been discussed above.
Section 45(2)(d) was not relevant to this application.
With regards to any possible side effects, Dr. Lim stated that KLD has not had any side effects to the baseline tests at 2mg oral dosage daily and although he has scoliosis and hepatitis B, he is at no special risk of side effects from the proposed treatment. However he will be monitored by the Community Forensic Mental Health team for evidence of any possible side effects.
Taking into account each of the factors in section 45, the Board was satisfied that that the proposed treatment would be in KLD’s best interests. The commencement of the treatment was urgent for the same reasons as the hearing of the application was urgent. Accordingly, the Board gave consent in the following terms:
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
• that the medical treatment is urgent for the purposes of section 69(3)(b) and 45(4)
THE BOARD consents to medical treatment for the patient comprising the prescription by a qualified medical practitioner and administration by a qualified health care professional of the following drugs
Risperidone Consta up to a maximum of 50 mgs per fortnight, to be administered by intramuscular injection, and
Risperidone up to 6 mgs per day to be administered orally for 8 weeks.
THE BOARD FURTHER ORDERS
That this consent is only valid for 3 years on condition the Board receives 6 monthly reports from the applicant or the patient’s treating doctor detailing:
the suitability of the treatment and the dose,
whether there has been any improvement of the patient’s symptoms, and
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 pursuant to s.45(4) of the Guardianship and Administration Act 1995 the treatment may commence immediately.
Anita Smith
PRESIDENT
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