LNE (Medical Consent) - [2010] TASGAB 25

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

LNE - An application for consent to medical treatment by the ROYAL HOBART HOSPITAL

Neutral citation: LNE (Medical Consent) [2010] TASGAB 25

REASONS FOR DECISION

Anita Smith (President)
9 November 2010

Consent to medical treatment – notice of hearing – capacity to make decisions about antipsychotic treatment - whether treatment in the best interests of the person – duration of treatment - whether treatment ought to be commenced immediately or wait during an appeal period
Guardianship and Administration Act 1995 sections 6, 36, 44, 45, 69
Guardianship and Administration Regulations 2007 regulation 9(f)(ii)
Schloendorff v Society of New York Hospital (1914) 211 NY 125
Re MB (Medical Treatment) [1997] EWCA Civ 1361; (1997) 2 FCR (UK) 541
Ms B v An NHS Hospital Trust [2002] EWHC 429 (Fam); (2002) 2 FCR (UK) 1 [10]
Hunter and New England Area Health Service v A [2009] NSWSC 761 [23]
Brightwater Care Group v Rossiter [2009] WASC 229
Re MB [1997] 2 FCR 514 at 553.

LNE is a qualified medical practitioner. She is in her early fifties and currently an involuntary patient in the Department of Psychological Medicine (DPM) of the Royal Hobart Hospital (RHH). A member of the treating team at the RHH, Dr Michael Evenhuis, has applied for Board to give its consent to medical treatment for LNE, namely treatment with one of three alternative antipsychotic medications. LNE has refused such treatment and denies having any illness for which antipsychotic medications would be necessary.
The application was made pursuant to sections 44 and 45 of the Guardianship and Administration Act 1995 (the Act). The Board was satisfied that Dr Evenhuis, by reason of his role as her treating practitioner while in hospital, is a person with a proper interest in that matter for the purposes of section 44(1) of the Act. The application was submitted in writing and contained the prescribed information for the purposes of section 44(2) of the Act. The Board was satisfied that the application met the formal requirements of the Act.
When hearing an application for consent to medical treatment, the Board must be satisfied of matters set out in sections 36 and 45 of the Act. Section 36 states:
36. Application of Part 6
(1) This Part applies to a person with a disability who is incapable of giving consent to the carrying out of medical or dental treatment, whether or not the person is a represented person.
(2) For the purposes of subsection (1), a person is incapable of giving consent to the carrying out of medical or dental treatment if the person –
(a) is incapable of understanding the general nature and effect of the proposed treatment; or
(b) is incapable of indicating whether or not he or she consents or does not consent to the carrying out of the treatment.
Section 45 states:
45. Consent of Board
(1) On hearing an application for its consent to the carrying out of medical or dental treatment the Board may…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] TASGAB 25
Decision Date: 9 November 2010

CaseChat Overview and Summary

This case involved an application for consent to medical treatment for LNE, a qualified medical practitioner, who was an involuntary patient in the Department of Psychological Medicine at the Royal Hobart Hospital. Dr Michael Evenhuis, a member of the treating team at the hospital, applied for the Guardianship and Administration Board's consent to administer one of three alternative antipsychotic medications to LNE. LNE refused treatment and denied having any illness for which antipsychotic medications would be necessary. The Board had to decide whether the medical treatment was lawful, if LNE was incapable of giving consent, and if the treatment was in her best interests. The Board found that the treatment was lawful, that LNE was incapable of giving consent due to her persecutory delusions preventing her from understanding the nature and effect of the proposed treatment, and that the treatment was in her best interests. The Board approved the treatment with the three alternative drugs for a period of 12 months, and allowed the treatment to commence immediately.

The final orders of the Board were as follows:

1. 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 medications: Olanzapine depot, up to 405mg fortnightly with oral Valproate up to 2g per day, titrated by blood level, OR Risperidone depot, 25-50mg fortnightly, with oral Valproate as per clause (i) above, OR Zuclopenthixol depot, 50-200mg fortnightly, with oral Valproate as per clause (i) above.

2. The Board FURTHER ORDERS that this consent is valid until 8 November 2011 on condition the Board receives a report on or before the 9 May 2011 from the applicant or treating doctor detailing:

a. The suitability of the treatment and the dose,

b. Whether there has been any improvement of the patient's symptoms, and

c. 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.

3. Pursuant to s.45(4) of the Guardianship and Administration Act 1995, the treatment may commence immediately.

Orders