LNE (Medical Consent)
[2010] TASGAB 25
•9 November 2010
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 consent to the carrying out of the medical or dental treatment if it is satisfied that –
(a) the medical or dental treatment is otherwise lawful; and
(b) that person is incapable of giving consent; and
(c) the medical or dental treatment would be in the best interests of that person.
(2) For the purposes of determining whether any medical or dental treatment would be in the best interests of a person to whom this Part applies, matters to be taken into account by the Board include –
(a) the wishes of that person, so far as they can be ascertained; and
(b) the consequences to that person if the proposed treatment is not carried out; and
(c) any alternative treatment available to that person; and
(d) whether the proposed treatment can be postponed on the ground that better treatment may become available and whether that person is likely to become capable of consenting to the treatment; and
(e) in the case of transplantation of tissue, the relationship between the 2 persons concerned; and
(f) any other matters prescribed by the regulations.
(3) Subject to subsection (4), a decision of the Board to give its consent to medical or dental treatment has no effect until the period of appeal under section 76 has expired or, if an appeal has been instituted, it is set aside, withdrawn or dismissed.
(4) If –
(a) an application for the consent of the Board for the carrying out of medical or dental treatment on a person has been made under section 44; and
(b) the Board considers that the treatment is urgent –
the Board may give its consent for the treatment to be carried out immediately.
Context to the application:
LNE was admitted to the Royal Hobart Hospital Emergency Department on 5 October 2010 by the Crisis Assessment Triage Team (CATT) and Tasmania Police. She was placed on an initial order under the Mental Health Act 1996. Although none of the witnesses at the hearing were able to give direct evidence of this, it had been reported in the medical notes that LNE had been tampering with electrical wiring in her rented premises and it was considered that this put her at risk of death by electrocution. There were also associated, but unproven allegations of causing a nuisance to neighbours, excessive alcohol use and a possible assault by LNE upon another person.
Following admission to the Emergency Department, LNE was transferred to the Psychiatric Intensive Care Unit (PICU) until the 12th October. PICU is a more intensive treatment environment and a more secure ward than DPM and both are within the RHH precinct. Between the 12th October and the 5th November she had been transferred between PICU and DPM six times according to the level of risk perceived by the treating team. LNE is the subject of a current Continuing Care Order.
LNE was the subject of eviction proceedings in the Magistrate’s Court. On 25 October 2010 an emergency administration order appointing the Public Trustee as her administrator was made by this Board to instruct removalists and arrange for storage of her possessions before the eviction to avoid any loss of personal assets resulting from the eviction. LNE alleges that her detention in the Royal Hobart Hospital and any actions taken under the administration order are illegal and that criminal acts have been perpetrated against her.
Most of the evidence provided with respect to matters under this heading were read from reports by members of the CATT team and were therefore hearsay. Although the Board is not bound by rules of evidence, it is important to note that these facts were not taken as proven by the Board, only as to providing a context to the application.
Pre-hearing arrangements:
Pursuant to section 69 of the Act, LNE is entitled to 10 days notice of a hearing unless the Board considers it proper to dispense with notice of the hearing by reason of urgency. A purported application was received by facsimile on 20 October but was unsigned. A signed application was received on 25 October 2010. At that stage the applicant noted that the application did not need to be heard urgently. However the applicant noted with respect to the urgency for treatment:
“It is not in LNE best interest to remain in hospital as an involuntary patient without treatment. As noted above duration of untreated illness is associated with worse long term outcomes. LNE appears to be distressed by her current circumstances and this is probably related to her untreated illness.”
On 26 October 2010 the Board issued a notice of hearing for 9.30am on 9 November 2010 at DPM in the RHH. Notice was sent to all relevant parties and a representative from the Legal Aid Commission of Tasmania as per the Board’s usual practice in these applications.
Dr Evenhuis wrote to the Board on 29 October 2010 indicating that the circumstances of the urgency of the application had changed and seeking to bring the application forward. Dr Evenhuis indicated that this request had LNE’s support most particularly because Dr Evenhuis would not be available in person on 9 November 2010 due to other commitments and LNE wished to cross-examine him. The Board asked LNE’s disability advocate, Mr Aron Perkins, to independently verify this statement of her wishes recorded by Dr Evenhuis. Mr Perkins confirmed her wish to bring the matter forward by email dated 29 October 2010.
Accordingly the Board brought the application forward to 5 November 2010 at 9.30am meaning that LNE had 10 days notice in any event. All documents related to the application were provided to LNE by facsimile to DPM. She was also provided with a copy of Part 6 of the Act. Prior to the hearing LNE submitted handwritten faxes challenging the lawfulness of the proceedings, some of which were also transmitted to the registry of the Supreme Court. LNE raised concerns about not being able to read documents due to a lack of reading glasses, a matter that the Acting Registrar raised with staff on DPM prior to the hearing.
LNE indicated on 29 October 2010 and at the hearing that she did not want to represented by the Legal Aid Commission of Tasmania or any other solicitor but wished to have Mr Perkins attend as a witness to the proceedings.
The hearing:
The hearing at DPM was attended by:
LNE
Dr Michael Evenhuis, RHH
Mr Aron Perkins, Advocacy Tasmania
Mrs Margaret Colville, Deputy Public Guardian
Ms Kerrie Mollenhagen RN, RHH
Mr Lee Perry, Compliance Officer GAB
LNE was a very active participant in the hearing. She asked various questions of Dr Evenhuis. The evidence of each of Mr Perkins and Mrs Colville was limited to clarifying their participation in certain events. Ms Mollenhagen also provided limited evidence. Mr Perry attended in a clerking capacity. The hearing proceeded for approximately 1.5 hours.
At the conclusion of the hearing LNE referred to vast amounts of evidence that she had available but which had not been considered in the hearing. The Board adjourned to enable LNE to make written submissions to be collected by Mr Perry on Monday 8 November at 4.30pm. Noting her continuing concerns about poor reading ability, the Board gave directions of its own motion to the Public Trustee to attend LNE at DPM to ascertain the whereabouts of her reading glasses and deliver them to her if possible. As an interim measure Mr Perry loaned his reading glasses to LNE which she said significantly improved her vision. The Public Trustee reported back to the Board later that day indicating that officers had attended LNE in the ward but that reading glasses could not be located.
A 2 page document was collected by Mr Perry at 4.30pm on 8 November. This and all other written materials from LNE have been taken into account by the Board.
Is the medical treatment otherwise lawful?
Dr Evenhuis seeks the Board’s consent to treat LNE with one of the following drugs in order of his preference:
·Olanzapine depot, up to 405 mg fortnightly with oral Valproate, up to 2g/day, titrated by blood level, or
·Risperidone depot, 25-50mg fortnightly, with oral Valproate as above, or
·Zuclopenthixol depot, 50-200mg fortnightly, with oral Valproate as above.
Dr Evenhuis gave evidence that Olanzapine, Risperidone and Zuclopenthixol are all antipsychotic medications and Valproate is a mood stabilising drug. All drugs have been approved by the Australian Therapeutic Goods Administration and are accepted treatments for psychotic illnesses. LNE did not dispute the validity of the drugs but stated that it would be unlawful to treat her with these drugs as she does not have a psychiatric disability. The Board is satisfied that the proposed treatment is ‘otherwise lawful’ which it interprets to mean it would be lawful if there were valid consent to its administration.
Is LNE incapable of giving consent to the proposed treatment?
Every human being of adult years and sound mind had has a right to determine what shall be done with his own body[1]. A person of full age is assumed to be capable of having the mental capacity to consent to, or refuse, medical treatment.[2] Therefore the Board starts from the presumption that LNE has capacity and is therefore entitled to refuse treatment with antipsychotic drugs for any reason that she may choose. [3] However, if evidence shifts that presumption, then the Board may determine consent on her behalf.
[1] Schloendorff v Society of New York Hospital (1914) 211 NY 125, Cardozo J at 129
[2] 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] and Brightwater Care Group v Rossiter [2009] WASC 229
[3] See Butler-Sloss LJ in Re MB [1997] 2 FCR 514 at 553.
It is fundamental to understanding the nature and effect of medical treatment that one also understands the condition that is to be treated. The evidence given by Dr Evenhuis is that LNE has schizoaffective disorder. He stated that this illness causes her distress, it puts her at a risk of loss of reputation, and that acting upon her delusions put her at direct risk of harm, possibly from electrocution. This is the condition for which he seeks consent to medical treatment.
Dr Evenhuis has made his diagnosis based upon his observations of LNE and medical records available to him. Key in that diagnosis was the presence of LNE’s persecutory delusions for over 5 years and periods of elevated mood. According to Dr Evenhuis, some of LNE’s presentation might also be consistent with Bi Polar Affective Disorder, however additional evidence of a functional decline indicated to him that the illness is Schizoaffective Disorder not Bi Polar Affective Disorder.
As an example of recent behaviours, Dr Evenhuis gave evidence that one day over a period of 2 hours when he was on ward rounds during the current admission, LNE was continuously knocking on a door and passing written notes under it. During the 2 hours period, he said, she displayed anger and distress but was on occasions also laughing. He also gave evidence that she had tampered with the wiring on an oven in the ward. She expressed beliefs about electrical forces affecting her body.
Nurse Mollenhagen gave evidence that LNE had taken multiple food sachets from the kitchen, opened them and then arranged them in a peculiar but precise fashion but did not consume them. The food then had to be destroyed in accordance with hospital hygiene procedures.
LNE denied that she has either psychiatric disability and was affronted by any suggestion of a functional decline. She stated that she had previously experienced Post Traumatic Stress Disorder but indicated that this had been resolved with a particular kind of hypnotherapy called eye movement desensitization and reprocessing. She also indicated a number of physical incapacities but denied any difficulties in decision making.
LNE’s evidence is that she is the only person in the RHH with the mental capacity handle her current difficulties including eviction proceedings, proceedings in the Supreme Court and her allegedly unlawful detention. Many of LNE’s statements during the hearing and her written communications were consumed with the preparation of evidence for a Supreme Court hearing. She explained the example given by Dr Evenhuis about knocking on a door and passing notes for 2 hours was for the purpose of communicating evidence for the Supreme Court case. Her statements indicated that she was in possession of special knowledge and evidence that she would only communicate to the Supreme Court.
LNE is emphatic that she does not have a psychiatric disability. Her evidence was that she perceives that representatives of the RHH including Dr Evenhuis are committing unlawful actions against her and that she is a victim of these alleged crimes rather than a person with a psychiatric disability.
LNE is clearly a well educated, intelligent and articulate woman. Her written communications with the Board prior to hearing were querulous and accusatory. Her evidence at the hearing, as observed by the Board, was confused and she was disorganised in answering direct questions. Most answers related back to a purported Supreme Court action and often did not relate to the proceedings on foot. Her communications with Dr Evenhuis were often aimed at denigrating his competence rather than challenging his evidence directly. These attributes are consistent with aspects of the historical medical reports supplied with the application.
LNE does not countenance the possibility of a mental illness. However Dr Evenhuis’ evidence was compelling and consistent with the Board’s own observations during the hearing and the historical medical reports. The Board accepts Dr Evenhuis’ evidence that LNE has schizoaffective disorder. Having accepted that evidence of a diagnosis, the Board must consider whether LNE has capacity to understand the nature and effect of the proposed treatment – i.e. whether the presumption of capacity stands or whether LNE is incapable of consenting to or refusing medical treatment.
In deciding whether a person has capacity to make a particular decision, the ultimate question is whether that person’s disability renders him or her incapable of making the decision. Evidence of a lack of capacity may include:
(1) an inability to comprehend and retain the information which is material to the decision, in particular as to the consequences of the decision; or
(2) an inability to use and weigh the information as part of the process of making the decision.[4]
It is LNE’s adherence to a persecutory delusion that prevents her acceptance or consideration of the possibility of having a mental illness or accepting medical advice about the treatment for that illness. Therefore the delusional symptoms of her schizoaffective disorder prevent her from comprehending the medical advice and weighing up the decision to be treated or not. The Board accepts that LNE lacks the requisite capacity to give consent to or refuse the proposed treatment.
Would the proposed treatment be in LNE’s best interests?
[4] Per Butler-Sloss LJ in Re MB at 553 – 554
LNE has been involuntarily hospitalised for a month without treatment. She clearly finds the experience of hospitalisation distressing particularly as she perceives that being hospitalised prevents her from going about the business of her Supreme Court action and from defending the eviction. However Dr Evenhuis stated that, if untreated, LNE will remain in hospital for her own safety until there has been an abatement of current symptoms, which could mean being hospitalised for the remaining 4-5 months of the Continuing Care Order. Such order is also capable of immediate renewal upon expiry, meaning the term could be open ended.
Dr Evenhuis stated that treatment may resolve some of LNE’s delusional beliefs, for instance about the need to tamper with electrical wiring, and therefore promote her personal safety. Dr Evenhuis sees a direct link between LNE receiving antipsychotic treatment and her release from hospital.
LNE’s wishes[5] are not to be treated. She also wishes to give evidence in a Supreme Court hearing which she believes will resolve her current difficulties. She wishes to be released from hospital.
[5] Relevant to sections 6 and 45(2)(a) of the Act
The consequences to LNE if the proposed treatment is not carried out[6] are that she will remain at risk of death by electrocution and therefore remain under a Continuing Care Order. Dr Evenhuis predicts that without treatment LNE will experience ongoing deterioration in her condition, meaning that treatment will be less and less likely to be effective the longer it is delayed.
[6] Relevant to section 45(2)(b) of the Act
Dr Evenhuis indicated that the three antipsychotic drugs he had noted in the application were preferred because they are injectable. He stated that oral medications can be an alternative but in circumstances where a person is refusing treatment, injectable medications are more effective as the techniques to evade ingestion of the treatments are not available. Of the three injectable antipsychotic drugs, Olanzapine is preferable because it starts acting immediately and is injected monthly, as opposed to Risperidone which is injected fortnightly and has a longer lead-in time (up to 6 weeks) before it is effective.
Sodium Valproate is a mood stabiliser. According to the Deputy Public Guardian, LNE accepted this treatment on a prior occasion when she was hospitalised and she showed some improvement on that medication. LNE did not express her consent to treatment with this drug on this occasion. In any event Dr Evenhuis did not believe that treatment with a mood stabiliser alone is in LNE’s best interests.
LNE preferred alternative treatment would be eye movement desensitization and reprocessing (EMDR) which is a form of psychotherapy. Dr Evenhuis denied that this is an accepted or effective form of treatment for any disorder.
Neither Dr Evenhuis nor LNE gave evidence of any new forms of treatment being developed that might make it appropriate to postpone treatment awaiting availability.[7] Dr Evenhuis noted that LNE would remain hospitalised during any such postponement of treatment which is directly contrary to her wishes.
[7] Relevant to section 45(2)(d) of the Act
With all injectable antipsychotic drugs there is, according to Dr Evenhuis, a risk[8] of post-injection syndrome. This can be fatal, but to minimise this risk a patient is closely observed for known symptoms by nursing staff immediately after an injection. As monthly injections are undertaken in supervised therapeutic environments, this risk is contained. LNE did not believe that such a syndrome exists.
[8] Relevant to regulation 9(f)(ii) of the Guardianship and Administration Regulations 2007
One of the reasons why Dr Evenhuis has sought authorisation for three alternative drugs is to ensure that, should LNE develop symptoms associated with known side-effects of any one of the drugs, the treating team can proceed to treat with an alternate effective treatment. In that sense, the application itself builds in the ability to adapt to any demonstrated adverse reactions to the drugs.
LNE reported feeling immobilised by previous medications. Dr Evenhuis stated that this was not a common or known side effect of antipsychotic drugs.
In summary then, when weighing up the factors in section 45(2) of the Act, the Board notes that involuntary treatment is clearly contrary to one of LNE’s stated wishes. However a lack of treatment will mean continued detention under the provisions of the Mental Health Act 1996 which is also directly contrary to LNE’s wishes. An injection of Olanzapine will have immediate effect upon LNE’s psychotic symptoms and Valproate will stabilise her mood. Should Olanzapine prove incompatible with the treatment aims, the alternate drugs have similar effects and would be administered in similar environments.
After weighing up the evidence given at the hearing, LNE’s written submissions, the historical materials supplied with the application and the observations the Board made during the hearing, the Board believes that treatment is overwhelmingly in LNE’s best interests. It is only with this treatment that LNE may achieve discharge from the RHH and resume her life outside the hospital. She appears to crave her liberty above all other things, but cannot achieve it without treatment because of the high risk of death by electrocution that accompanies her delusional beliefs. As treatment may abate those delusions, treatment is the key to her liberty.
The Board is satisfied that it is in LNE’s best interests to give consent to the treatments sought in the application.
Duration of treatment:
Dr Evenhuis stated that to make a proper assessment of whether the antipsychotic drugs will improve LNE’s illness, they need to be administered for at least 3 to 6 months. The Board believes that LNE, having been unmedicated for most of her life, will need a sustained course of treatment to redress the effects of the psychosis. Accordingly the Board approves treatment with the 3 alternative drugs for a period of 12 months on the condition that the treating practitioner who relies upon the Board’s consent reports after 6 months as to whether the Board’s consent is still required and other relevant matters.
Commencement of treatment:
Noting that section 45(4) allows the Board to give consent for treatment to be carried out immediately where treatment is required urgently, the Board takes into account the following factors:
(a) That LNE has been detained in hospital without treatment for at least 1 month to date,
(b) That she is distressed by the experience of detention but is unlikely to be released without treatment,
(c) Delaying treatment pending an appeal period could mean that LNE is without treatment (and therefore involuntarily detained) for at least another 2 months, and
(d) The statements already made by LNE about actions in the Supreme Court.
In taking into account all of those matters, the Board considers that treatment is required urgently. A delay now of another 1 – 2 months before treatment would mean that she is detained for 3 months without treatment and, if she was not successful in an appeal, her condition may deteriorate further in that time. Accordingly the Board’s consent will commence immediately.
Conclusion:
After hearing an application by Dr M Evenhuis for the consent of the Board to medical treatment for LNE (hereinafter called the ‘patient’)
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 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 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
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:
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
9 November 2010
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