ME (Medical Consent)
[2010] TASGAB 4
•19 February 2010
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
ME – Application for consent to medical treatment by MENTAL HEALTH SERVICES
Neutral Citation: ME (Medical Consent) [2010] TASGAB4
REASONS FOR DECISION
Anita Smith (President)
Colin McKenzie (Deputy President)
Andrea Schiwy (Member)
Hearing: 19 February 2010
Consent to medical treatment – patient with schizophrenia had given qualified consent out of fear of hospitalisation - coercion does not produce genuine consent – lack of understanding of consequences of the disease if untreated
Guardianship and Administration Act 1995, Part 6, s 36, 44(1), 45, and 76
On 21 January 2010, Dr David Lang applied on behalf of Mental Health Services for consent to medical treatment regarding ME pursuant to Part 6 of the Guardianship and Administration Act 1995 (the Act).
ME is a 22 year old woman who lives in a supported accommodation facility operated by the Richmond Fellowship. She is not currently employed, but is a TAFE student and has been Dr Lang’s patient for approximately 1 year.
Formal requirements of the application:
As her treating practitioner, the Board was satisfied that Dr Lang was a person with a proper interest in the matter for the purposes of section 44(1) of the Act and that the application met the other formal requirements of that provision.
The requisite 10-day notice period was observed and Dr Lang’s application was heard by the Board on 19 February 2010. The following persons attended the hearing:
ME
Dr David Lang – Applicant (by telephone)
Tony Abel – Advocate from Advocacy Tasmania
Jill Summers – Richmond Fellowship
KE – ME’s father
Carole Cashion – Case Manager, Mental Health Services
Lee Perry – Investigation and Liaison Officer GAB
Before granting an application for consent to medical treatment, the Board must be satisfied of the criteria in section 45 of the Act. Section 45(1) and (2) states:
“45(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.”
The applicant sought consent to treat ME with Risperidone Consta intra-muscular injections fortnightly to a maximum dosage of 37.5mg. Such treatment is a regular and approved treatment for schizophrenia and other mental illnesses and is ‘otherwise lawful’ for the purposes of section 45(1)(a) of the Act.
Does ME have a disability?
The applicant has diagnosed ME with schizophrenia. He based this diagnosis upon previous diagnoses by other hospital practitioners and his own observations that she is on occasions acutely thought disordered, has persecutory delusions and appears to be distracted by unseen things. He also noted in the application that she has a mild but evident learning disability.
ME questions her diagnosis of schizophrenia and its ‘lifelong sentence’. At the hearing, she did not appear adamantly opposed to the diagnosis, only to raise questions in the manner that many patients might. The Board was satisfied for the purposes of section 36 of the Act that ME is a person with a disability.
None of the other witnesses, advocates or participants disputed the diagnosis or submitted or sought to submit evidence to contradict the diagnosis. They only questioned the suitability/desirability of the treatment proposed.
Is ME incapable of giving consent?
The fundamental question in the application was whether ME is incapable of understanding the general nature and effect of the proposed treatment for the purposes of section 36(1) and (2) and 45(1)(b) of the Act. Dr Lang stated that, at times, ME has rejected the assertion that she has any psychological or psychiatric difficulties. He stated that while ME is currently accepting of the treatment which is the subject of this application, she held an underlying belief that she does not need that medication.
Dr Lang submitted that he could not be certain that ME was giving free and informed consent to treatment that he was prescribing and which is the subject of this application. His was an ethical concern that her qualified consent was based on a fear of hospitalisation rather than a general acceptance that she has a mental illness and requires this treatment to stay well. Noting that coercion does not produce genuine consent, Dr Lang sought consent from the Board instead. ME stated at the hearing “I accept medication because I don’t have a choice and do not want to go to hospital.” Her case manager, Carole Cashion, confirmed that a psychiatric nurse had told ME that if she did not agree to take her medication, that she would be put on a mental health order, so she agreed to resume taking medication to avoid going back to hospital.
ME tendered a written statement that she had prepared for the hearing. It states:
“I wish to experience what I feel like without the Risperdal Consta. I am living in supported accommodation at Richmond Fellowship and feel it is an ideal time to do this.
Everyone agrees that I have made good progress since becoming unwell approximately a year and a half ago. I ‘do’ question my diagnosis of schizophrenia and its lifelong sentence. Dr Lang has told me that one of the symptoms of this diagnosis is based on me hearing voices. I have never heard voices. I am open to the fact that I ‘may’ have a mental illness and may need medication. I would like to seek a second opinion.
I simply want to find out if the medication I am on is making any difference as I do not want to be taking something that has long term affects on my physical body if it is not needed. My weight gain and feeling of flatness of my personality is a concern to me. I feel as though I cannot feel emotions like I used to and this is getting me down. Also, I want to know whether I am better because of the medication or because I have dealt with the issues which brought on my period of mental distress.”
The sentiments in this letter are consistent with ME’s statements at the hearing and those of her advocate. Dr Lang, when questioned by ME’s advocate, agreed that it may be possible that ME does not hear voices, but he said the omission of this criterion did not fundamentally alter his diagnosis or his assessment of her capacity to make treatment decisions. Dr Lang stated that the dosage that ME is currently on is the lowest practical dosage, 25mg. He agreed that she has made excellent progress since living at Richmond Fellowship and praised the level of support that she receives there. Dr Lang stated that without treatment, ME will certainly relapse at great personal cost to her mental health.
ME’s case manager noted that during the short time since her diagnosis she has had two significant periods of hospitalisation, firstly between 3 August 2008 and 3 November 2008 and then between 8 April 2009 until July 2009. Following July 2009, she was discharged to a Mental Health Services step-down facility, Mistral Place. From there accommodation provided by Richmond Fellowship was secured for ME. Since residing with Richmond Fellowship, she has made significant progress, including attending two TAFE courses and being enrolled in an employment program. Her case manager stated that work is ongoing in assisting ME to understand her illness and to become aware of triggers and early warning signs and how to deal with these.
The case manager, however, also confirmed that ME has a history of rejecting oral medications. ME agreed that prior to the hospitalisation in April 2009, she had stopped taking her medication. The case manager indicated that, with her approval and that of Dr Lang, ME has been referred for a second psychiatric opinion by her general medical practitioner and is encouraged to learn more about her condition.
KE described the lead up to both hospitalisations as ‘horrendous’ for ME and her family. He stated that whereas paranoia had been a feature of ME’s illness prior to the first hospitalisation it had not been a feature in the second, meaning that she was more accepting of help in the second hospitalisation. He was supportive of the work being done in relapse prevention between his daughter and her case manager.
Jill Summers, a support worker from Richmond Fellowship, clarified that recently when prescribed both Risperidone Consta and Seroquel, ME had ceased taking Seroquel for approximately a month before she notified Dr Lang. When told, Dr Lang noted that she felt better without it and approved its cessation. Ms Summers encouraged ME to explore other avenues for treatment, i.e. other than conventional medication. Ms Summers was particularly impressed with the teachings of a person named SD and believed that if ME is given the opportunity to explore things that occurred in her childhood, she may be able to attribute symptoms to past trauma and learn to control those symptoms better. References to childhood trauma were vague and unspecific and the Board was uncertain whether this referred to ME’s personal history or to Ms Summers’ particular understanding of schizophrenia.
The Board was concerned that as a result of ME’s intellectual disability, she may have difficulty interpreting the complex information being given to her by Ms Summers; information which may undermine ME’s confidence in Dr Lang’s advice. The Board was concerned from her statements that Ms Summers was advocating a move against conventional medicine. Ms Summers denied this. She admitted that Dr Lang had expressed concerns to her employer about aspects of her intervention in ME’s treatment regime.
ME’s advocate argued because of continued medication that she has not had an opportunity to ‘explore’ her disease. He offered no evidence, expert or otherwise, that it was appropriate to do so or about the potential consequences of doing so, nor did he put any question to Dr Lang in that regard. By extrapolation he appeared to reason that continued medication could undermine the work of the case manager in determining early warning signs and triggers because the disease has been suppressed. (This argument was not put by the case manager who appeared to support continued treatment.) He believed that in a safe environment such as Richmond Fellowship, she could safely ‘experiment’ with the effects of the disease. He referred to treatment as a ‘blunt instrument’ inferring that education and exploration could be more effective.
The Board was concerned that ME’s desire to ‘explore her disease’ showed a distinct lack of understanding of the disease and the lasting harm that can arise from episodes of acute psychosis of which the Board is aware of by reason of its own experience in considering the evidence and history of other cases which come before it for the various purposes within its jurisdiction. It also lacked an appreciation that prior to April 2009 she had ceased taking medication and felt the effects of the disease, becoming so significantly unwell that she was hospitalised for over three months.
In noting the above concern, the Board is aware that ME’s decision to cease Seroquel appeared to be reasonable in the circumstances. However, a decision to reduce treatment from two antipsychotic drugs to one is a different decision to ceasing treatment all together. The Board also noted that she has had little time with her case manager as yet and with more education and support from her case manager, she may come to a better understanding of the disease and the role of medication. ME has an opportunity to learn as much as possible about the disease and ‘explore’ it with the support of her case manager and, importantly, while she is being treated. Arguments that she can only explore the disease without treatment appeared to minimise and romanticise a very serious illness and were based on little more than anecdotal evidence.
The Board decided that her denial that she had previously experienced the effects of the schizophrenia and a desire to do so arose from a lack of understanding or a denial of the disease and a lack of insight into the effects of the illness or the effects of the medication including withdrawal of the medication. The Board was satisfied that ME lacked capacity to consent to treatment because she is incapable of understanding the general nature and effect of the proposed treatment for the purposes of section 36(1) and (2) and 45(1)(b) of the Act.
Is treatment in ME’s best interests?
The Board took into account ME’s age, the fact that she is still in the early stages of the disease, the significant length of time that Risperidone takes to take effect and the difficulties that a relapse could cause for ME. In noting ME’s wishes to further reduce treatment, the Board also noted that she did not express any concerns about injections, or attending for treatment, only a desire to experience the full expression of her illness and a concern that treatment leaves her personality flat and some side effects which are presently being managed.
The consequences if treatment is not carried out include a possible relapse and another long period of hospitalisation. There are other antipsychotic drugs available, but Risperidone Consta is considered to have the fewest side effects and the best such drug available because of the certainty of delivery by injection. The effects of postponing the decision to see whether ME recovers capacity to make the decision might also result in her refusing treatment and, as above, possible relapse and hospitalisation.
The Board heard arguments that the proposed treatment is unduly restrictive upon ME. In this regard the Board noted that she is on the lowest possible dosage of the drug and that periods of the absence of antipsychotic drugs between July 2008 and July 2009 resulted in her spending almost 7 out of 12 months in hospital. By contrast, since she has been treated, she has been out of hospital for almost 7 months. It appears to the Board that the results of not being treated are far more restrictive than the results of being treated.
The Board was satisfied that the proposed treatment is in ME’s best interests.
Other possible sources of consent:
ME’s father noted that he could give consent as ‘person responsible’ but declined to do so because he was advised by Dr Lang of the negative that impact such a decision may have on his relationship with his daughter.
Commencement of treatment:
Because of the likelihood that, without a determination by this Board, ME may pursue her desire to explore her disease through the refusal of treatment, the Board was concerned to promote continuity of treatment. She has been consistently receiving injections to date and shown much improvement. If the Board’s consent were delayed, those improvements might be undermined. The Board determined that the need for ongoing and consistent treatment is urgent, taking into account the provisions in sections 45(3) and 76, in the sense that based on the experiences that ME had in 2009, cessation of treatment for the relevant period is reasonably likely to bring about a relapse and extended hospitalisation. Therefore the Board gave its consent to treatment being carried out immediately.
Conclusion:
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 of up to 37.5mgs per fortnight of Risperidone Consta to be administered by intramuscular injection by a qualified health care professional
THE BOARD FURTHER ORDERS:
That this consent remains valid until 18th February 2011.
That pursuant to s.45(4) of the Guardianship and Administration Act 1995 the treatment may commence immediately.
Anita Smith
PRESIDENT
Request for statement of reasons received: 10 March 2010
Statement of reasons delivered: 15 March 2010
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