KXF

[2019] NSWCATGD 40

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

KXF [2019] NSWCATGD 40

Hearing dates:

10 July 2019

Date of orders:

10 July 2019

Decision date:

10 July 2019

Jurisdiction:

Guardianship Division

Before:

J Moir, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
Emeritus Professor P J Foreman, General Member (Community)

Decision:

The Tribunal consents to the following special medical treatment being provided to KXF:

Cyproterone acetate (Androcur) up to a dose of 100 mg twice a day 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 months from the date of this order.

Mrs Z, the appointed guardian for KXF is given the authority to consent to continuation of Cyproterone acetate (Androcur) up to a dose of 100 mg twice a day for the remaining term of the guardianship order.

Catchwords:

CONSENT TO MEDICAL TREATMENT – application for consent to special medical treatment – subject person with an acquired brain injury – ongoing cognitive impairment – history of disinhibited sexual behaviour – androgen reducing medication for the purpose of behavioural control – Androcur (Cyproterone Acetate) – subject person incapable of providing consent – whether the treatment is the most appropriate form of treatment to promote health and well-being – consent given for a limited period of three months – subject person’s appointed guardian given authority to consent to continuation of treatment for the remaining term of the guardianship order.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 33(2), 42(2), 45(3)(b); Pt 5

Guardianship Regulation 2016 (NSW), reg 14(b)

Cases Cited:

None cited.

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

008: Consent to Special Medical Treatment

KXF (the person)
QZX (applicant)

Representation:

Nil.

File Number(s):

NCAT 2018/00342908

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

GUARDIANSHIP APPLICATION

Background

1. KXF is a 39-year-old man who lives in regional NSW, in supported accommodation operated by a disability service provider. KXF has an acquired brain injury from a motor vehicle accident in his late teens. His parents, Mrs Z and Mr Y live nearby and are very involved in his life.

2. On 21 November 2018, the Tribunal consented to special medical treatment for KXF, for a period of three months. The special medical treatment was Cyproterone Acetate (Androcur), to assist with management of sexualised behaviour by KXF.

3. On 17 January 2019 the Tribunal received a further application from Mrs Z for consent to special medical treatment, seeking further approval of the use of Androcur. Mrs Z also made an application for a guardianship order for her son, specifically in relation to restrictive practices used within his accommodation. On 6 March 2019 the Tribunal made a guardianship order for KXF, appointing his mother for two years to make decisions about his behaviour support and restrictive practices. On the same occasion, the Tribunal agreed to the withdrawal of the application for consent to special medical treatment.

4. On 21 June 2019 the Tribunal received an application for consent to special medical treatment, Androcur, from QZX, KXF’s treating psychiatrist.

5. These reasons for decision arise from the hearing of this application.

The hearing

6. The hearing was conducted in Sydney and the participants were all by telephone. The participants were Mrs Z, KXF, QZX, Ms V, support worker, and Ms U, Team Leader.

What did the Tribunal have to consider?

7. When considering an application for consent to special medical treatment, it is necessary for the Tribunal to consider if the proposed treatment is “special medical treatment” and whether KXF is unable to provide consent on his own behalf. If the Tribunal is satisfied of both of these matters then the Tribunal must be satisfied that:

1. It is appropriate for the treatment to be carried out

2. The proposed treatment is the most appropriate form of treatment for promoting and maintaining the patient’s health and well being

3. The proposed treatment is the only or most appropriate way of treating the patient and it is manifestly in his best interests and

4. The proposed treatment complies with any relevant National Health and Medical Research Council guidelines.

8. In considering the above questions, the Tribunal must have regard to the views of KXF, and Mrs Z as well as the objects of Pt 5 of the Guardianship Act 1987 (NSW).

9. 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 the proposed treatment ‘special treatment’?

10. The proposed treatment is Androcur 50-100 mg twice a day (up to 200 mg a day). Section 45(3)(b) of the Guardianship Act, and reg 14(b) of the Guardianship Regulation 2016 (NSW), define “Special treatment” to include “any treatment that involves the use of androgen reducing medication for the purpose of behavioural control”. Androcur is an androgen reducing medication, and the purpose of its use in KXF’s life is to control his sexualised, and aggressive behaviour. There is no suggestion that it is for the treatment of a medical condition. The Tribunal was therefore satisfied that it is “special treatment” because it is for the purpose of behavioural control only.

Is KXF incapable of providing consent to the proposed treatment?

11. 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.

12. KXF sustained a brain injury in a motor vehicle accident some years ago. The Tribunal considered a Behaviour Support Plan (BSP) prepared by Ms X, Behaviour Support Consultant from the disability service provider, dated 14 March 2019. This indicates that KXF has ongoing cognitive impairment as a result of the brain injury and provides the details regarding the way in which this affects KXF on a day-to-day basis. He has significant physical disabilities (including hemiplegia), has very unclear speech, a variety of delusional beliefs which affect his cognition. The Tribunal has previously been satisfied that KXF was not capable of providing consent to the proposed treatment, and that he is a person for whom a guardianship order could be made, because of the impact of his disability on his cognition. There was no new evidence which conflicted with this. It was undisputed by the hearing participants and consistent with KXF’s presentation (such that it was possible to a gauge on the telephone) during the hearing that he is not capable of providing consent to this treatment on his own behalf. The Tribunal was satisfied that KXF is incapable of providing consent to the proposed treatment on his own behalf.

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

13. KXF is reported to have a history of disinhibited sexual behaviour. He also has aggressive outbursts. The Tribunal noted that the BSP refers to KXF having a number of “behaviours of concern”, which are: sexually inappropriate behaviour, which involves grasping females he considers to be attractive (usually support staff) by the breast, buttocks and genitals, usually when staff are performing high care activities which require close proximity. He also uses physical aggression towards people including striking people with his fist or foot. Again this is largely directed towards support workers, generally male workers and females he does not consider to be attractive. He can also engage in verbal aggression, some of which appears to be in relation to his delusional beliefs.

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

14. KXF was prescribed and was treated with Androcur 50 mg twice a day for a trial period between November 2018 and March 2019. Androcur reduces testosterone levels in the body which can assist in reducing sexualised and aggressive behaviours.

15. As noted earlier, Mrs Z had asked the Tribunal to provide further consent to this treatment in March 2019, but then elected to withdraw the application, on the basis that staff reports did not indicate any reduction in sexualised and aggressive behaviour, and that there had been some worsening of aggressive behaviour whilst KXF was taking the medication. This was based on information in a letter to QZX from KXF’s GP, Dr W, dated 8 February 2019, who advised that blood tests showed that KXF’s testosterone levels had reduced to 30% of baseline after taking the medication. QZX confirmed that on this basis the use of Androcur was not of benefit to KXF, and that he would no longer prescribe it for him.

16. However since that time, it has become apparent that the view that there had been no improvement was not shared by all staff. In a letter to Dr W dated 13 June 2019, QZX states that he had reviewed KXF, and the staff member who attended with him reported that whilst KXF was taking Androcur, his sexualised grabbing of staff diminished substantially, sexual talk became much more general and less explicit and so less offensive. He was able to go on community outings and enjoy them because he was not preoccupied with the belief that he had to go home to meet with girls who were coming to have sex with him. On this basis, QZX advises Dr W that he has applied for the Tribunal’s consent to prescribe Androcur again at a dose of 50 mg and up to 100 mg twice a day.

17. At the hearing QZX said that given KXF’s sexualised grabbing and aggression cause such a problem for him and staff who are caring for him, it is, in his view worth a further trial of Androcur to see if it does indeed assist.

18. Mrs Z said that she had not noticed much change when he was taking Androcur previously, but that some of the support workers reported that there was a significant improvement. She felt that a further trial was warranted, although she is concerned about the potential side effects.

19. Ms V said that she was one of KXF’s carers during the trial and that she had observed that his sexualised comments were less graphic and that he was more willing and happier to go out when he was taking this medication.

What are the alternative options for treatment that are available?

20. Strategies in place at present are primarily management and physical restraint (which is a restrictive practice contained in the Behaviour Support Plan). QZX said that there are no other approaches he considers would be likely to assist. The Tribunal noted evidence that in the past, KXF was given the opportunity of time with a sex worker, but that this was not successful because of his aggression.

Are there any risks associated with the proposed treatment?

21. Some risks of the treatment are known by the Tribunal to be liver inflammation, weight gain, loss of sexual characterisation, nausea and osteoporosis. QZX said that blood tests were undertaken prior to the first trial and will be performed again before he recommences the medications. QZX thought it was unlikely that KXF would be able to have a bone density scan because of his agitation.

Is the proposed treatment the most appropriate treatment?

22. Based on QZX’s evidence, there is no other treatment which might assist with these behaviours. The Tribunal is satisfied that it is the most appropriate treatment.

How will the proposed treatment promote and maintain the patient’s health and wellbeing and is the proposed treatment manifestly in the patient’s best interests?

23. The treatment will promote and maintain KXF’s health and wellbeing because of the reduction in risk that his sexualised behaviour will harm others, reduce the quality of his care, provoke some kind of altercation, or bring him to the attention of the law. It is also hoped that if the recent staff report is correct, the treatment will assist KXF to enjoy greater opportunity and freedom to be part of the broader community.

24. Given this, the Tribunal was satisfied that the treatment with Androcur up to 100 mg a day is manifestly in KXF’s best interests, provided that he does not develop any significant adverse side effects.

Does the proposed treatment comply with the relevant guidelines?

25. There is no evidence that the proposed treatment falls outside of accepted guidelines.

What are the views of KXF?

26. For the reasons referred to earlier, it was not possible to obtain KXF’s views.

What are the views of Mrs Z?

27. Mrs Z said that she does not like the possibility of serious side effects, but is supportive of there being a further trial period, provided blood tests are done to monitor for potential adverse effects. She is willing to take responsibility for providing consent in the future.

What are the views of QZX?

28. As stated above, QZX considers that because the problem is so significant, it is useful to have another trial of the medication to see if it is of benefit. In his letter to Dr W, he sets out the protocol for dosage and tests.

Conclusion

29. On balance the Tribunal was satisfied that the proposed treatment is the most appropriate treatment to reduce and manage KXF’s sexualised behaviour and that it is manifestly in his best interests. The Tribunal will consent to the treatment at a dose of 50-100 mg twice a day (up to 200 mg a day). The consent is valid for a period of three months, at which time Mrs Z, as guardian, is authorised to provide further consent if requested for the term of the existing guardianship order.

30. The Tribunal notes that it will be essential for his support staff to keep reliable records of behaviours in order to be able to assess whether or not the medication is showing any benefit.

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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