KQN

[2021] NSWCATGD 22

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

KQN [2021] NSWCATGD 22

Hearing dates:

13 August 2021

Date of orders:

13 August 2021

Decision date:

13 August 2021

Jurisdiction:

Guardianship Division

Before:

J D’Arcy, Senior Member (Legal)
Dr G Jamieson, Senior Member (Professional)
F N Given, General Member (Community)

Decision:

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

A full course of vaccination with the Pfizer COVID-19 vaccine 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 six months from the date of this order.

Mrs Z is joined as a party.

Catchwords:

GUARDIANSHIP – COVID-19 vaccination – consent to medical treatment – person responsible refuses to consent to administration of vaccination – consideration of reasons for refusal by person responsible and medical evidence in support of vaccination being administered – Tribunal consented to administration of vaccination – determined that vaccination is most appropriate form of treatment to maintain person’s health and well-being and to prevent serious damage to his health if he contracts COVID-19.

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), s 44(1), cl 7(1), Sch 6

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

Cases Cited:

None cited.

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

006: Consent to Medical or Dental Treatment

KQN (the person)
SZQ (applicant)

Representation:

Solicitor:

N Danis, separate representative

File Number(s):

NCAT 2015/00384810

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

Background

1. This hearing concerns an application for consent to medical treatment, which is the administration of the COVID-19 vaccine, to KQN.

2. KQN is a 68-year-old man of German background who has been living in a group home in the Greater Sydney area run by a disability service provider since February 2014. KQN is supported by his sister, Mrs Z, who lives in regional Queensland.

3. KQN is reported to have a developmental delay as a result of a traumatic brain injury sustained as a child. His other reported medical conditions include type II diabetes, epilepsy, Parkinsons’ disease, hypertension, obstructive sleep apnoea, Alzheimer’s dementia, osteoarthritis, urinary incontinence and previous bowel surgery due to a sigmoid volvulus, following which he now has a colostomy.

4. KQN was under a non-reviewable guardianship order for 12 months from 16 March 2016 when Mrs Z was appointed to make decisions about his health care and services.

5. On 5 August 2021 SZQ, supported living manager [at the group home] applied to the Tribunal to consent to medical treatment, being the administration of a COVID-19 vaccination, because KQN was at risk of contracting COVID-19 and his sister and person responsible, Mrs Z, has refused to consent to the vaccination.

The hearing

6. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]

7. In an interlocutory hearing on 6 August 2021 the Tribunal ordered that KQN be separately represented and directions were made about joinder of parties.

8. Ms Nihal Danis has been appointed as KQN’s separate representative.

Should Mrs Z be joined as a party to the proceedings?

9. The Tribunal may order that a person can be joined as a party to proceedings if the Tribunal considers that the person should be joined: Civil and Administrative Tribunal Act 2013 (NSW) (“CAT Act”), s 44(1). For proceedings in the Guardianship Division of the Tribunal, the Tribunal must be satisfied that the person should be joined, whether because of the person’s concern for the welfare of the person the subject of proceedings or for any other reason: CAT Act, cl 7(1), Sch 6.

10. Mrs Z is not a party to the current proceedings. She sought to be joined as a party to the proceedings.

11. The Tribunal was satisfied that Mrs Z has a genuine interest in her brother’s welfare and had been involved in discussions about KQN receiving a COVID-19 vaccination prior to the application. Joining Mrs Z as a party would assist the Tribunal to gain a full understanding of her concerns against vaccinating KQN and would contribute to determining the best outcome in accordance with KQN’s best interests and welfare.

12. The Tribunal joined Mrs Z to the current application.

What issues did the Tribunal have to consider?

13. When considering an application for consent to medical treatment under s 42 of the Guardianship Act 1987 (NSW) (“the Act”), the Tribunal must have regard to the following matters, as outlined in sub-s 42(2) of that Act:

1. the grounds on which it is alleged that the person is a person to whom this Part applies;

2. the particular condition of the person 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.

14. In considering the above issues, the Tribunal must have regard to the views of KQN, SZQ, the applicant, and Mrs Z as person responsible: the Act, sub-s 44(2). The Tribunal must consider the objects of Pt 5 of the Act, which are to ensure that people are not deprived of necessary medical treatment because they lack the capacity to consent to that treatment; and to ensure that any medical treatment that is carried out is done so for the purpose of promoting and maintaining the person’s health and well-being.

Is KQN incapable of providing consent to the proposed treatment?

15. Subsection 33(2) of the 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.

16. There was no dispute among the parties to the hearing that due to his developmental delay, KQN is incapable of understanding the nature and the effect of a COVID-19 vaccination and of providing informed consent to the treatment.

17. The parties’ views were confirmed by the very limited answers that KQN was able to provide to the questions asked of him by the Tribunal.

What is the proposed treatment?

18. SZQ proposes that KQN receive a full course of vaccination against COVID-19 with the Pfizer vaccine.

19. KQN lives in the Greater Sydney area which is currently under increasingly strict lockdown measures due to the rapid spread of the highly-infective Delta strain of COVID-19. KQN lives in a five bedroom group home with other residents, all of whom have now received the full course of the Pfizer vaccine. His carers live in the community. SZQ proposes that KQN be fully vaccinated to ensure that his health is not compromised if he is exposed to COVID-19. There are no other alternative treatment options.

20. SZQ further stated that if unvaccinated KQN’s ability to access the community may be limited and it may affect his visits to his brother who lives in a nursing home.

21. SZQ advised that Mrs Z has discussed the treatment with staff at the group home and also spoken to KQN’s general practitioner, Dr Y, but she would not consent to the treatment.

Mrs Z’s views and submissions

22. Mrs Z described the treatment as “experimental treatment” and, having researched the side-effects of the treatment, stated that she had significant concerns about the adverse effect of the Pfizer vaccine in compromising her brother’s immune system. She noted that there was more than a 99% survival rate after contracting COVID-19 in unvaccinated persons. Her research indicated that the adverse effects of the vaccine outweighed the benefits of being vaccinated. She referred to a paper in the International Journal of Infectious Diseases which stated that one shot of the vaccine affected every organ in the body.

23. Mrs Z provided a detailed written submission to the Tribunal in which she raised the following concerns:

• Several of her friends who have been vaccinated are now in hospital having contracted COVID-19, even after being fully vaccinated.

• Worldwide testing of the vaccine will not be completed until late-2023.

• Information on the weekly safety reports from the Therapeutic Goods Australia (TGA) website indicates large numbers of vaccinated people experience adverse side-effects and there are indications that in 425 reported deaths vaccination was a contributing factor to death.

• 73% of the 109 deaths recorded by the TGA after vaccination with Pfizer occurred in persons aged over 65 years.

• Her brother is on a wide range of medications and the TGA has recorded numerous reactions between the vaccine and medications.

• A news report by a world-renowned Israeli doctor indicated that the effectiveness of the vaccine is fading out.

• The newspaper Daily Expose (UK) on 29 July 2021 reported that 87% of the people who have died from COVID-19 were vaccinated.

• The European database of adverse drug reactions (EudraVigilance) for COVID-19 reported on 25 May 2021 that 12,184 people were dead and 1,196,190 were injured following vaccination.

• The State of the Nation (America) website referred to more than 400,000 people reporting “injuries” after vaccination.

• A Freedom of Information Request by an unnamed Australian to the Australian Government Department of Health requesting information on the effect of the vaccines was refused.

• The Office of the Gene Technology Regulator described the vaccine as a “trial” vaccine.

• The current CEO of Pfizer, a 59-year-old man, was asked on video whether he had been vaccinated and he has not.

• There is a lot of censorship of information concerning the side-effects of vaccination and many of the alternative information sites have been censored.

24. Mrs Z also referred to information she had received that more than 80% of the person’s in Ireland who has been vaccinated had experienced heart inflammation.

25. In response to the Tribunal’s question as to whether she had researched reputable medical and scientific sites, Mrs Z responded that she had seen some positive research. However she considered that the vaccine was still in an experimental stage. She wanted to wait for a few more months until more data has been collected about the effects of the vaccine before she consented to treatment.

26. In her discussions with the Tribunal concerning the possible restrictions on KQN’s activities and even visits to his brother if the proposed vaccine passport/certificate comes into effect which would limit a person’s ability to access cafés and restaurants and other entertainment venues if unvaccinated, Mrs Z indicated that she would “more likely” give consent at that time to avoid her brother being stuck at home and not being able to enjoy those activities which impact on his mental health and well-being. When asked if this passport/certificate came into effect within the next four weeks as a means of opening up Greater Sydney whether she would consent to the treatment, Mrs Z stated that she would likely do so at that time. However she was not prepared to give consent now.

Medical evidence

27. KQN’s treating doctor, Dr Y, was not available for the hearing. She provided medical reports dated 3 and 12 August 2021. In the first report Dr Y reported that KQN would be at very high risk if he contracted the COVID-19 infection. She believed that he would like to be vaccinated but recognised that he does not have the capacity to consent to treatment.

28. In her report of 12 August 2021 Dr Y stated:

“There are documented risks and side effects from both Covid-19 vaccines currently available in Australia (Pfizer and AstraZeneca) which has been well documented by ATAGI and the TGA. I do not consider that [KQN] is at any greater risk of suffering from these effects as a result of his co-morbidities than any other person.

[KQN] does not have any known contraindications to the vaccine as per the current ATAGI recommendations. I believe that [KQN] is at greater risk of suffering from harm if he contracts Covid-19 infection than the known risks and side effects from the vaccines. I also understand that if he remains unvaccinated against Covid-19 it may limit his ability to participate in social activities outside the group home environment, which are important for his overall mental health and well-being.”

29. Dr X, KQN’s treating geriatrician, told the Tribunal in the hearing that her general advice to elderly people in the community is to get vaccinated. KQN has a significant number of comorbid conditions and is more at risk of developing serious lung conditions if he contracts COVID-19 and would more likely have to be ventilated. His risk of death was significant. The side-effects, however, are very small. If he is vaccinated with Pfizer there is a one in 100,000 risk of blood clots and KQN has no underlying conditions which would render him more susceptible to severe side-effects and no medical history of blood clotting. In his case, the benefits of vaccination greatly outweigh any small risk of side-effects.

30. Dr X stated that the vaccine was not an experimental vaccine. It has gone through appropriate safety testing and has been fully checked by the regulators who check every medicine before it is made available to the public.

31. Dr X added that her background was Irish and she was aware of reports in Ireland surrounding the COVID-19 vaccine but was not aware of any studies concerning an 80% heart inflammation side-effect rate. Dr X further stated that the advice and information provided by the NSW Department of Health indicates that the side-effects of heart inflammation are very small. KQN has no underlying conditions which would put him at a higher risk of developing complications of heart inflammation.

Submissions of the separate representative

32. Ms Danis advised that she had spent some time with KQN and his carer, Ms W. She described him as a highly-social person who spends a considerable amount of time in the community. He accesses the community on Tuesdays, Wednesdays, Fridays and Saturdays and sometimes goes to church on Sundays. He is unable to undertake any activities outside of the house at present due to the current COVID-19 public health orders. If he is unvaccinated he may not be able to undertake any of his current activities, should some of these activities be lifted, which could have a significant impact on his mental health and behaviour. Access to the community is necessary to promote his health and well-being.

33. Ms Danis reported that KQN has some recognition of the risks in accessing the community. A few days ago when he was out getting coffee with Ms W he did not want to leave the car because he said that he felt unsafe. He watches the news daily and staff help him to interpret the information and so he is aware of the COVID-19 situation. While he is unable to consent to the treatment he has some understanding and appreciation of the current situation. He knows that other members of his home have been vaccinated and there is an element of him feeling left out.

34. Ms Danis referred to the medical evidence which indicated that KQN had no comorbidities which would render him more susceptible to having adverse side-effects to vaccination. There are no contraindications that he should not be vaccinated. She referred to Dr X’s evidence in which Dr X stated the need to balance risks and benefits.

35. She submitted that KQN’s quality of life could be significantly curtailed by the reluctance of his carers to take him out for fear of contracting COVID-19. Members of his household will be coming and going from the house which would increase his exposure to the current highly-infective variant.

The Tribunal’s findings

36. It was clear to the Tribunal that Mrs Z has a close and loving relationship with her brother and that she is very concerned about the risk of side-effects if her brother receives the Pfizer vaccine. Although she is currently opposed to him being vaccinated, she has indicated that, even in the near future, if his activities, well-being and mental health are affected by limitations on his access to the community, she would most likely consent to the vaccination. She is however concerned that sufficient data on adverse side-effects has not been collected in Australia.

37. Mrs Z has researched the adverse side-effects of the vaccine and presented some of the results in her written submission. Although she stated that she has also accessed websites which refer to the positive effects of the vaccine, her written submission did not include that information. The websites that she is relying on are not mainstream reputable medical or scientific sites but rather websites which are said to provide misinformation. The Daily Expose is described as a UK focused conspiracy site which is a highly-influential medical misinformation platform. Claims which rely on EudraVigilance are often misleading and false; and the State of the Nation (America) alternative news site is also said to promote misinformation with headlines such as the “COVID-19 vaccine causes COVID-19 outbreaks”.

38. The Tribunal concluded that while Mrs Z has been diligent in researching the effects of vaccination, the internet provides mixed information about the side-effects of vaccination; and there are many websites which promote misinformation designed to dissuade people from being vaccinated. Mrs Z’s research has not relied on reputable medical and scientific websites but rather alternative news sites which provide unchecked, alarmist and misleading material.

39. The Tribunal’s role however is not to evaluate the risks and benefits of vaccination with the Pfizer vaccine but rather to consider whether treatment by the Pfizer vaccine is the most appropriate form of treatment for promoting and maintaining KQN’s health and well-being; and whether the proposed treatment is necessary to save his life or prevent serious damage to his health. The Tribunal considered the specific risks to KQN of being vaccinated with the Pfizer vaccine, considering his age, current medical conditions, the risk to his physical health if not vaccinated, the risk to his mental health and well-being if his activities are restricted by not being vaccinated against the side-effects of having the Pfizer vaccine.

40. KQN is currently living in a local government area where there is an increasingly high risk of him contracting COVID-19 as cases of the highly- infective Delta variant surge in NSW. Although he is not currently able to access the community, there is a relatively high risk that he could contract COVID-19 because his carers are constantly moving between the community and the group home and are being exposed to contact with the virus.

41. The Tribunal gave significant weight to the medical evidence provided by Dr Y and Dr X, both of whom are strongly recommended that KQN be vaccinated. With her knowledge of his medical conditions, Dr Y stated that he did not have any greater risk of experiencing side-effects as a result of his comorbidities and that he has no known contraindications to the vaccine. Both doctors stated that KQN was at greater risk of illness if he contracted COVID-19 than he was of side-effects from the vaccines, with Dr X adding that there was a high risk that he would have to be ventilated if he contracted COVID-19.

36. The Tribunal gave significant weight to Ms Danis’ submission and to the evidence of KQN’s carers that KQN’s behaviour, health and well-being could be adversely affected if he is restricted from accessing the community because he is unvaccinated. Prior to lockdown he accessed the community four to five times a week and was also able to visit his brother in his nursing home. A form of vaccine passport/certificate is currently being discussed by the Federal government as a means of moving out of lockdown in NSW and for people to be able to access cafés, restaurants and entertainment venues. If he is unvaccinated KQN’s access to the community could be severely restricted with consequent adverse effects on his behaviour, mental health and overall well-being.

37. Having carefully considered all of the available evidence and acknowledging Mrs Z’s love and concern for her brother, the Tribunal decided that a full course of vaccination against COVID-19 with the Pfizer vaccine was the most appropriate form of treatment to maintain KQN’s health and well-being and to prevent serious damage to his health if he contracts COVID-19.

38. The Tribunal consented to KQN having a full course of vaccination with the Pfizer vaccine. The consent is effective for six months from the date of the order.

39. SZQ advised that the vaccination would take place within the next few weeks.

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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: 02 February 2022