MGC
[2015] QCAT 80
•11 March 2015
| CITATION: | MGC [2015] QCAT 080 |
| PARTIES: | MGC |
| APPLICATION NUMBER: | GAA1153-15; GAA1154-15 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 3 March 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Acting Senior Member Endicott Member Joachim |
| DELIVERED ON: | 11 March 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. MGC has capacity for decisions for all health matters except when she is emotionally dysregulated. 2. The application for the appointment of a guardian is dismissed. |
| CATCHWORDS: | GUARDIANSHIP – ENDURING POWER OF ATTORNEY – CAPACITY – where applicant seeks a declaration about adult’s capacity for health care decisions – where adult has engaged in significant self-harm – where adult has borderline personality disorder – where adult’s mother holds an EPA – where health professionals have difficulty obtaining adult’s views due to her changing her mind – whether adult is capable of making health care decisions – whether attorney for health care should exercise power |
REPRESENTATIVES:
MGC was represented by David Manwaring, Queensland Advocacy Incorporated.
Cassie O’Connor, the applicant, was represented by Sonja Read, of Minter Ellison Lawyers.
REASONS FOR DECISION
MGC is 22 years of age. She lives at home with her mother who is her carer.
MGC hopes to commence university studies in 2016 on an external basis.
She appointed her mother as her attorney under an enduring power of attorney dated 22 February 2014 to make decisions about both personal and financial decisions.
The Tribunal received an application from a clinical nurse consultant at the Princess Alexandra Hospital seeking the appointment of the Public Guardian as guardian for MGC and seeking a declaration as to whether she had capacity to make decisions about her health care.
MGC has a long history of extreme self-harming since she was a teenager. These include but are not limited to cutting to her arms, wrists and legs; burns to her legs; ingestion of foreign objects including knives, pens, forks; and cutting open or inserting objects into scars and wounds. She has also swallowed such things as bleach.
This self-harming has required around 40 surgical interventions due to the nature of the self-harming.
On occasions following the operations MGC has attacked the wound. She now has a large enterocutaneous fistula meaning that food or fluid that she eats or drinks drains out of her abdominal wound and is mostly not absorbed.
Surgery to address this wound is not an option at the present time given the state of her abdomen.
Currently MGC receives artificial nutrition and hydration through a feeding tube with stoma care. She also has mental health support.
The application has been lodged because the treating team needs certainty about the health care decisions required by MGC who has periods when she changes her mind about her health care. The treating team also has concern that MGC’s mother may not be in a position to make the best decision for MGC under the enduring power of attorney, because of her close relationship with MGC, and the potential difficulty of decisions.
MGC was discharged from Princess Alexandra Hospital approximately three weeks ago as medically stable.
The treating surgeon Dr Peter Hodgkinson gave evidence to the Tribunal that if MGC’s skin around the wound becomes ulcerated as a result of her eating and drinking inappropriately, the dressings for the wound will not stick.
The current issues associated with the care regime include the changing of the stoma and the amount and type of food that MGC eats and drinks. She does not follow the recommendations of the treating team in this regard.
Dr Hodgkinson advised the Tribunal that because of the scar tissue in the abdomen there was a risk of more holes occurring in her bowel if there was further surgery. He indicated that if the scar tissue settled over time it may be possible to have further surgery but he could not be certain of this.
He indicated there are three approaches to MGC’s care. Firstly, she could have an operation; secondly, she could be treated as at present; and thirdly, palliation where the goal is comfort with no supplemental feeding.
MGC has indicated repeatedly that she wishes to live and she does not wish for palliation.
Does MGC have Capacity for Decisions about her Health Care?
Dr Hodgkinson formed the view that because of MGC’s behaviours she lacked capacity for decision-making about health care when she was lucid and when she had emotional dysregulation.
He came to this view on the basis that MGC’s behaviour does not match her goals. In other words, her behaviour on a day-to-day basis is not consistent with her goals. For instance, although she decided to live, she made a subsequent decision not to be fed by a tube, even in a lucid state.
He stated that if there is no threat to MGC’s life the team go with MGC’s wishes, and if they feel they cannot get MGC’s consent they go to her mother.
Dr Hodgkinson advised of the risks associated with the feeding tube being removed by MGC. Although it will need to be changed overtime it cannot be reinserted every couple of weeks because of the dangers of radiation to both the radiologist and to MGC.
Dr Pun is a psychiatrist who works as part of the treatment team. He provided an extensive report to the Tribunal as well as giving oral evidence.
His view is that MGC has capacity when she is in a calm state but does not have capacity when she has emotional dysregulation.
He advised that MGC can understand the consequences of refusing treatment at an intellectual level when she is calm, a state he described as her baseline state.
Even at the baseline state he stated that MGC had negative cognitions regarding herself and her weight and that this can get in the way of treatment.
MGC has a borderline personality disorder. He described that MGC would make decisions within the framework of her personality style. He said that her baseline cognitions led to decisions which were intrinsic to her and her borderline personality disorder.
He stated that people with personality disorders will often change their minds.
Dr Pun said that when MGC was emotionally dysregulated she was not calm, but agitated and aggressive and could not make rational decisions. At other times he said when she was calm it was possible to have rational discussions and although there are somewhat irrational cognitions which do come into play, this is a part of her personality disorder and do not make her necessarily incompetent.
He argued that this was intrinsic to her personality style and should be considered part of her autonomous decision making ability.
Dr Powell is a psychiatrist from whom Dr Pun sought a second opinion.
Her report indicated that MGC had capacity for all health matters except when she was agitated. She stated in her report it is almost certain that by virtue of her psychopathology and the emotional state driving agitated behaviour that MGC would lack capacity to make decisions about treatment at those times.
She was referring to the occasions when it is likely that MGC’s self-harm has the primary purpose of bringing about her death. She noted that MGC had expressed by and large that she wants to live but this fluctuates.
She stated that her ambivalence is a hallmark of borderline personality disorder and that MGC’s capacity is only impaired when her emotional state is heightened.
She further advised the Tribunal that a treating clinician needed to make decisions at those times about MGC’s capacity.
The applicant’s solicitor submitted that a declaration of capacity is required because of the increased difficulty for the treating team in treatment planning and the need for certainty about who was the relevant decision maker.
She observed that there were four sets of conditions for decision-making. On the one hand was the type of decision: that is, complex or simple and on the other hand, whether MGC was calm or emotionally dysregulated.
She submitted that the directions MGC gave for treatment were inconsistent with her goals and spoke of the practical difficulties of having a psychiatric assessment available at a specific point in time.
The Tribunal appointed a separate representative for MGC to represent her views, wishes and interests. He submitted that MGC’s capacity fluctuates and that when she is unable to make health care decisions she would prefer her mother make them under the enduring power of attorney.
She has made it clear to the separate representative that she wishes to live and does not wish to die and does not wish palliation.
She understands that there are two treatment options available to her namely artificial feeding and no active treatment with palliation.
She acknowledges that she does not follow the specialised diet provided by the hospital and continues to take food and liquids orally outside of the guidelines.
The separate representative agreed with the view of Dr Powell that MGC’s capacity should be assessed when she presents to the hospital and only if she lacks capacity should substituted decision-making be resorted to. He nevertheless recognised the difficulty associated with the cyclic nature of MGC’s illness.
He further submitted that such difficulty should not impact on her rights or dignity to be able to make her own decisions.
He submitted that the Tribunal should make a declaration that MGC has capacity for all health matters complex and simple.
The Tribunal’s View
The Tribunal accepts that the evidence from all the medical witnesses is that MGC does not have decision-making capacity at times when she is agitated and has emotional dysregulation. The more difficult question is whether MGC has capacity for complex health care decisions when she is calm or at her baseline level of functioning.
The Tribunal prefers the evidence from psychiatrists, Drs Pun and Powell, that MGC is able to make decisions for herself in relation to both complex and simple health care decisions when she is calm. Dr Hodgkinson’s contrary opinion is based on his belief that MGC’s behaviour is not consistent with her goals and that opinion was adequately addressed by Dr Pun’s evidence.
The Tribunal accepts that MGC may change her mind about decisions at times when she is calm, such as refusing feed through the tube and that the decisions she might make at times may be inconsistent with her expressed goals. The Tribunal accepts the explanation of Dr Pun that changing one’s mind is a feature of someone with a borderline personality disorder.
The Tribunal accepts Dr Pun’s view that changing her mind or being inconsistent arises from the intrinsic nature of her personality style such that MGC would make decisions taking into account her negative cognitions regarding herself and weight. The Tribunal accepts Dr Pun’s evidence that this tendency to change her mind and to embark on actions that are inconsistent with her goals is not invariably a manifestation of impaired capacity.
The Tribunal acknowledges that when MGC is calm and is changing her mind it is difficult for practitioners to determine what her true views and wishes are.
As an autonomous individual, MGC has a right to change her mind however frustrating this may be to the clinicians even though these decisions may sometimes fly in the face of her stated goals.
The Tribunal finds on the evidence provided that when MGC’s emotional state is heightened she lacks the ability to make decisions for herself and has impaired decision-making capacity for health decisions. This would include, for instance, times when she self-harms, when she is agitated and aggressive and when it is not possible to have a rational discussion with her.
The Tribunal has decided to make a declaration that MGC has capacity for decisions about all health care matters except at those times when she suffers emotional dysregulation.
The Tribunal will make orders accordingly.
Who should be the Decision Maker?
MGC’s mother advised the Tribunal that at the time the guardianship application was prepared she was not fully aware of the consequences of having some other person making decisions for MGC. MGC’s mother indicated that her daughter wants her to be the decision maker and that she is happy to do the job.
She stated that since returning home MGC’s skin has improved as has the stoma management.
Whilst the Tribunal was asked to make an order that the enduring power of attorney becomes operational at the times of emotional dysregulation the Tribunal is not inclined to make such an order. The enduring power of attorney becomes operational for personal matters when the principal lacks capacity. A decision about whether MGC has decision-making capacity to make any relevant health care decision must be made by the relevant clinician at the time MGC becomes emotionally dysregulated.
At that time he or she should get whatever consent is required for health care from the attorney.
There was no evidence before the Tribunal to indicate that MGC’s mother was not a suitable attorney and as such the application for the appointment of a guardian will be dismissed.
Should there be a Non Publication Order
The applicant’s solicitor requested a non-publication order.
The Tribunal is not minded to make a non-publication order. The reasons published by QCAT in guardianship matters on the Tribunal’s website are de-identified. None of the published information in these reasons is likely to identify MGC. MGC told the Tribunal that she did not support a non-publication order and the Tribunal is not persuaded that prohibiting the publication of the medical evidence or any other part of the reasons is necessary to avoid endangering MGC’s mental health or safety.
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