MKC

[2021] NSWCATGD 38

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

MKC [2021] NSWCATGD 38

Hearing dates:

15 December 2021

Date of orders:

15 December 2021

Decision date:

15 December 2021

Jurisdiction:

Guardianship Division

Before:

J Moir, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
S Johnston, General Member (Community)

Decision:

Guardianship application   

1.   A guardianship order is made for MKC.

2.   The Public Guardian is appointed as the guardian.

3.   This is a continuing guardianship order for a period of 12 months from 15 December 2021.

4.   This is a limited guardianship order giving the guardian custody of MKC to the extent necessary to carry out the functions below.

FUNCTIONS:

5.   The guardian has the following functions:

a)   Health care

To decide what health care MKC may receive.

b)   Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where MKC is not capable of giving a valid consent.

c)   Restrictive Practices

To give or withhold consent as to whether the restrictive practice of chemical restraint should be used to influence MKC’s behaviour.

CONDITIONS:

6. The conditions of this order are:

a)   Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring MKC to an understanding of the issues and to obtain and consider his views before making significant decisions.

b)   Restrictive Practices Condition

The guardian may only consent to the use of the types of restrictive practices permitted under this order to influence MKC’s behaviour:

(i)   as a last resort to prevent MKC harming himself or others; and

(ii)   in accordance with a behaviour support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon MKC, and which is reviewed at least every 12 months and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.

Consent to special medical treatment:

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

Cyproterone Acetate (Androcur) up to 25 mg 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 four months from the date of this order.

This consent is subject to the condition that during this period investigations should be conducted into whether MKC has developed any adverse effects from this medication, such as reduced bone density/osteopenia/osteoporosis or liver dysfunction.

If prescription of this medication is required for longer than four months, a new application for the Tribunal’s consent must be made. This should be accompanied by:

results of any investigations into adverse effects;

results from recent testosterone levels;

records of behavioural data for the past six months;

and

updated information from his behavioural practitioner regarding the behavioural strategies being employed and the success of these in addressing the behaviour.

Catchwords:

CONSENT TO MEDICAL TREATMENT – application for consent to special medical treatment – Cyproterone Acetate (Androcur) – androgen reducing medication for the purpose of behavioural control – subject person not able to provide consent to medical treatment – finding that continued use of low dose of Androcur is in the subject person’s best interests – consent given for a period of four months – condition that investigations should be conducted into any adverse side effects.

GUARDIANSHIP – application for a guardianship order – subject person with an intellectual disability – subject person living in supported accommodation – restrictive practices – chemical restraint – need for a guardian to consent to the use of Androcur for behaviour control – need for decisions to be made in relation to health care and consent to medical and dental treatment – no private guardian available – Public guardian appointed – order made.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 33(2, 42(2), 45(3)(b); Pt 5

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

National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth)

Section)

Cases Cited:

IF v IG [2004] NSWADTAP 3

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

005: Consent to Special Medical Treatment

MKC (the person)
NZX (applicant)

006: Guardianship Application

MKC (the person)
NZX (applicant)
PSC (carer)
Public Guardian

Representation:

P Dixon, separate representative

File Number(s):

NCAT 2001/00105759

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

CONSENT TO SPECIAL MEDICAL TEATMENT AND

APPLICATION FOR GUARDIANSHIP ORDER

Background

1. MKC is a 58-year-old man who lives at regional NSW in supported accommodation managed by a disability service provider. MKC is reported to have an intellectual disability, brain injury and a significant hearing impairment. His father, PSC, also lives at regional NSW and involved in making some decisions for MKC, when required.

2. On 20 August 2001 the Tribunal made a financial management order appointing the Protective Commissioner (NSW Trustee and Guardian) to manage MKC's financial affairs.

3. On 27 March 2006 the Tribunal provided consent to special medical treatment for MKC, specifically - Androcur 300 mg daily for a period of 12 months. On 6 March 2008 the Tribunal again consented to special medical treatment - Androcur 200 mg daily for a period of 12 months.

4. On 14 September 2017 the Tribunal dismissed an application for a guardianship order.

5. On 28 October 2021 the Tribunal received an application from NZX, Group Home Team Leader with the service provider seeking the Tribunal's consent to special medical treatment - Androcur 25 mg daily for MKC.

6. On 2 November 2021 the Tribunal made an Order that MKC is to be separately represented.

7. On 14 December 2021 the Tribunal received an application for a guardianship order from NZX.

8. These reasons for decision arise from the hearing of both of these applications.

The hearing

9. The hearing was conducted by telephone and videoconference and the participants were MKC, NZX, and Ms Z, support worker. MKC's participation in the hearing was very limited. The Tribunal also spoke with Dr Y, MKC's Neurologist, for the part of the hearing which related to the application for consent to the use of Androcur.

10. Mr Paul Dixon, solicitor participated as separate representative for MKC. The Tribunal called PSC, to include him in the hearing but was not able to contact him. Mr Dixon advised that he had made a number of attempts to contact PSC but had not had any success. He understood from the service provider staff that PSC is known to be difficult to contact. The Tribunal noted that PSC had been advised of the details of the hearing, but had not made himself available, nor had he contacted the tribunal prior to the hearing to request an adjournment. The Tribunal was satisfied that it was in MKC's interests to proceed with the hearing regardless of his father not participating.

What did the Tribunal have to consider?

11. 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 MKC 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.

12. In considering the above questions, the Tribunal must have regard to the views of MKC and PSC (if possible) as well as the objects of Pt 5 of the Guardianship Act 1987 (NSW).

13. 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.

14. The questions which had to be decided in relation to the guardianship application by the Tribunal were:

• Is MKC someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

• Should the Tribunal make a guardianship order and if so, what order should be made?

• Who should be the guardian?

• How long should the order last?

Consent to Special medical treatment

What is the proposed treatment?

15. The proposed treatment is Androcur 25 mg a day. NZX clarified at the hearing that this is the correct dose. A letter dated 5 August 2021 from MKC's GP (since 2012), Dr X, refers to a dose of 50 mg a day being recorded when he took over MKC's care in 2012. He states that he has continued this, noting that he is not the prescribing doctor. Nonetheless NZX was clear that the dose was 25 mg a day.

16. MKC has been prescribed Androcur since at least 2006 although no consent has been sought from the Tribunal since 2007, when consent was given for a period of 12 months. The doses at that time were considerably higher than the present dose. NZX said that she started working with MKC about three and a half years ago and to the best of her knowledge he has been taking this medication continuously since 2012. Dr W’s Health Summary dated 29 September 2012 refers to a dose of 50 mg a day (1/2 50mg tablet twice a day). A letter from Dr Y dated 9 July 2012 states that he had recommenced Androcur after it had inadvertently been ceased, and this was thought to be implicated in his ongoing "irascible" behaviour. Dr X's letter from August 2021 suggests that the dose remains at 50 mg a day, although this is not what the Tribunal was told at the hearing by NZX.

17. No one was able to advise the Tribunal when the dose of 25 mg a day was started or who recommended this. Dr Y said that he is not the prescribing doctor, although he is recommending its use. In his August 2021 letter Dr X states that he is not the prescribing doctor and refers to the Tribunal to Dr Y for further information about the purpose of the medication.

18. It was very clear that there is a need for improved communication between MKC's treating practitioners to clarify who is prescribing this medication, at what dose, and to review its ongoing utility and possible side effects.

Is the proposed treatment 'special treatment'?

19. 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 MKC's life is said to be to control his sexualised 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 MKC incapable of providing consent to the proposed treatment?

20. 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.

21. The Tribunal previously provided consent for MKC to receive this medication for the purpose of controlling sexualised behaviour. On those occasions the Tribunal noted that MKC was not able to consent on his own behalf to this medication.

22. For this application, the Tribunal considered a number of medical documents, including Health Summary and a letter from Dr X (letter 5 August 2021 and summary 6 August 2021), a Health Summary from his former GP, Dr W (29 September 2012), and a brief letter from Dr Y (9 July 2012). The Tribunal also considered a Positive Behaviour Support Plan dated 10 June 2021 by Ms U. Taken together, these provide details of MKC's diagnosed conditions which cause him cognitive impairment, as acquired brain injury from two separate head traumas, epilepsy, schizophrenia (relate to his head injury) and depression. He also uses a hearing aid but continues to have a degree of hearing impairment.

23. The Tribunal noted that at page 4 of the application for consent NZX had indicated (by placing an ‘x’ in boxes), that MKC was capable of understanding the nature and effect of the treatment and capable of indicating his consent. However at the hearing, NZX indicated that this is not clear and that it is difficult to know what MKC understands because of his communication issues arising from his hearing impairment and intellectual disability.

24. Mr Dixon submitted that in his view MKC is not able to provide his own consent to this treatment. He said that he had spoken to MKC for a while and that they had a nice and relaxed conversation. MKC did not recall that he was taking this medication, was not able to explain what it was for and was easily distracted. He was unable to explain back to Mr Dixon what Mr Dixon had explained to him about the medication and why it was prescribed.

25. Dr Y said that he reviews MKC at least annually and had been seeing him for many years. He did not indicate that MKC was able to provide consent on his own behalf to medical treatment

26. The Tribunal was satisfied from the available evidence that MKC is incapable of providing his consent to the proposed treatment on his own behalf.

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

27. MKC is reported to have a history of sexualised behaviour towards female staff and strangers, including inappropriate touching, simulating sexual activity and sexualised comments. The behaviours were said to have started subsequent to his brain injury and the PBSP indicates that there has been some fluctuation over the years, with a general reduction in the behaviour since a seizure in 2020. However the Tribunal was told that the behaviour is still present albeit less frequently than in the past. The Tribunal was not given any behavioural data indicating the frequency, duration or intensity of the behaviour.

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

28. The medication reduces testosterone levels in the body and it said to be necessary in order to reduce the incidence of MKC's sexualised behaviour. It is reported that over the years he has been taking this medication, it has been successful in reducing the incidence of this behaviour.

What are the alternative options for treatment that are available?

29. The PBSP refers to MKC's sexualised behaviour towards female staff and visitors as a "behaviour of concern" and identifies triggers, function, duration (one to ten minutes), and frequency (several times a week). It states that MKC responds well to redirection by staff and will apologise for his behaviour when staff talk with him about his behaviour. The PBSP states that it is anticipated that MKC could benefit from replacement behaviours, and proactive strategies and establishes short, medium, and long-term goals for implementation and measures of success from these strategies. The PBSP indicates that in conjunction with behavioural strategies, the use of Androcur will continue under the regular supervision and review of his treating doctor. However it is proposed that it may be possible to fade out this medication, in the future, if positive behavioural strategies can be successfully implemented.

30. Dr Y told the Tribunal that he was unclear what effect this medication may now be having on MKC's behaviour, and that he anticipated it would be "modest". He suggested that consideration could be given to further reducing the dose, or even a trial without it and that it should only be given if it is necessary.

Are there any risks associated with the proposed treatment?

31. The risks of the treatment are described in the application as tiredness/fatigue, weight change, headache, depressive mood, nausea and other gastrointestinal complaints, decreased sex drive, breast pain, breast enlargement, hot flushes, shortness of breath and osteoporosis.

32. Dr Y said that he had not been monitoring for the risks of this medication and had presumed that the GP would be doing this. NZX said that she believed that blood tests were performed at least annually but was unsure what was tested for. She thought it was likely that testosterone levels were included in these tests but she was not sure. She was unaware of whether bone density tests had been done. There were no pathology results available for the Tribunal to review and Dr Y was unaware of any pathology results. Ms Z indicated that MKC's file showed that he had recent blood tests (23 November 2021) assessing haemoglobin and platelets, liver and thyroid function, but no testosterone levels.

33. The Tribunal noted that the Restrictive Practices Panel authorisation dated 25 October 2021 (which refers to a dose of Androcur of 50 mg a day) states there are no significant side effects reported to this medication. However it notes that MKC is prescribed numerous medications and suggested a polypharmacy review.

Is the proposed treatment the most appropriate treatment?

34. In MKC's case it appears that taking Androcur has assisted in the management of his sexualised behaviours. Reliable evidence regarding side effects is important in weighing up the benefits to MKC of receiving the treatment, as opposed to the risks from receiving the treatment. In MKC's case, there is no information available regarding the existence of any side effects for the Tribunal to make this assessment.

35. The Tribunal noted that the dose of the medication is low and that the treatment is very longstanding. The current evidence is that whilst it is hoped that behavioural strategies may ultimately be sufficient to manage this behaviour, this is not yet regarded as sufficient.

36. Based on the available evidence, the Tribunal is satisfied that continued use of a low dose of Androcur it is the most appropriate treatment, pending further evidence regarding possible side effects.

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?

37. The treatment will promote and maintain MKC's health and well-being because of the reduction in risk that his sexualised behaviour will harm others, provoke some kind of altercation, reduce the quality of the care that he receives, or bring him to the attention of the law. Noting the absence of some important evidence, the Tribunal was satisfied that continued treatment with Androcur up to 25 mg a day for a relatively short period is manifestly in his best interests.

Does the proposed treatment comply with the relevant NHMRC guidelines?

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

What are the views of MKC?

39. For the reasons referred to earlier, it was not possible to obtain MKC's views.

What are the views of NZX?

40. NZX considered that the medication was of benefit for MKC and supported the Tribunal providing consent.

What are the views of PSC?

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

Mr Dixon's submission

42. Mr Dixon noted the absence of important evidence regarding possible side effects from the long-term use of this medication and questioned whether the Tribunal could properly decide whether to provide consent in those circumstances. However he supported the Tribunal's proposal to provide consent for a short period only, with conditions regarding investigations into side effects.

Conclusion

43. On balance the Tribunal was satisfied that the proposed treatment is the most appropriate treatment to reduce and manage MKC's sexualised behaviour and that it is manifestly in his best interests. The Tribunal consents to administration of Androcur at the current dose of 25 mg a day subject to the condition set out in the order. The consent is valid for a period of four months, pending investigation of possible side effects, and consideration to whether the 0medication should be withdrawn. At the end of this period, a further application for consent will need to be made if this medication continues to be prescribed.

44. This consent is subject to the condition that during this period investigations should be conducted into whether MKC has developed any adverse effects from this medication, such as reduced bone density/osteopenia/osteoporosis or liver dysfunction.

45. If prescription of this medication is required for longer than four months, a new application for the Tribunal's consent will be required. This should be accompanied by:

• results of any investigations into adverse effects;

• results from recent testosterone levels;

• records of behavioural data for the past six months; and

• updated information from his behavioural practitioner regarding they behavioural strategies being employed and the success of these in addressing the behaviour

Application for Guardianship Order

Is MKC someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

46. Section 14 of the Guardianship Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or she is "a person in need of a guardian". A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing his or her person": Guardianship Act, s 3(1). A person with a disability is a person who is:

1. intellectually, physically, psychologically or sensorily disabled;

2. of advanced age;

3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or

4. otherwise disabled;

and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: Guardianship Act, s 3(2).

47. The Tribunal has previously set out the evidence about MKC's disability and cognitive impairment and need for assistance in his day-to-day life. There was no evidence provided which conflicted with this. The Tribunal was satisfied from this evidence, that MKC's disability affects his ability to make important life decisions. He is a person for whom the Tribunal could make a further guardianship order if necessary.

Should the Tribunal make a further guardianship order and if so, what order should be made?

48. The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a further guardianship order:

1. the views (if any) of:

1. the person,

2. the person's spouse,

3. the person's carer, and

2. the importance of preserving the person's existing family relationships,

3. the importance of preserving the person's particular cultural and linguistic environments, and

4. the practicability of services being provided to the person without the need for the making of such an order.

49. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Guardianship Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).

50. The Tribunal noted that the PBSP refers to MKC having behaviours of concern – sexualised behaviour as well as self-injurious behaviour (hitting head against the wall/punching the wall at times). The use of Androcur to assist in management of MKC's inappropriate sexualised behaviour is a form of restrictive practice – namely "chemical restraint".

51. Registered National Disability Insurance Scheme (NDIS) providers and behavioural support practitioners must now comply with the requirements set by the NDIS Quality and Safeguarding Commission (NDIS Commission), including those outlined in the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) (the Rules), and are responsible to ensure that consent and authorisation is obtained for the use of all restrictive practices.

52. The Rules state that regulated restrictive practices include chemical restraint, which is defined as the use of medication or chemical substance for the primary purpose of influencing a person's behaviour. It does not include the use of medication prescribed by a medical practitioner for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition.

53. The Tribunal has previously been satisfied that where a person is not able to provide consent on their own behalf to the use of a restrictive practice, consent must be given by a properly authorised guardian.

54. The use of Androcur is regarded as a chemical restraint, as it is prescribed for behavioural control. Although the Tribunal has provided consent to the use of this medication, a guardian is needed to agree to it being used as a form of chemical restraint. The Tribunal was satisfied that there was a need to make a guardianship order and give the guardian authority to provide consent to the use of chemical restraint.

55. Although the Tribunal had been advised that PSC had some involvement in making decisions regarding MKC's medical treatment, it became clear at the hearing that this has not been working effectively for MKC as his father is not reliably available nor particularly engaged in his son's situation. As noted above, the Restrictive Practices panel referred to MKC's "poly pharmacy" and suggested that this be reviewed. The Tribunal also noted the evidence of a lack of effective communication and coordination between MKC's treating doctors and considered that a guardian with authority to make decisions about his health care and to consent to medical/dental treatment would be able to play an important role in ensuring that MKC's interests and welfare are met.

56. Mr Dixon submitted that MKC needs a guardian to make decisions regarding his medical treatment and health care, in addition to the use of restrictive practices.

57. The Tribunal considered that making a guardianship order in the relevant terms was not in conflict with MKC's family relationships and cultural/linguistic background.

58. The Tribunal decided on the basis of all of this evidence that a guardianship order should be made and the guardian be given authority to make decisions regarding the use of restrictive practices – chemical restraint, as well as MKC's health care and consent to medical and dental treatment.

Who should be the guardian?

59. The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed: Guardianship Act, s 15(3).

60. As there is no private person available to be appointed as guardian, the Tribunal appointed the Public Guardian.

How long should the order last?

61. An initial guardianship order can be made for a period of up to one year from the date on which it was made.

62. The Tribunal decided to make an order for 12 months. The order should be reviewed at the end of this period to consider whether there remains a need for an order in these or some other terms.

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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: 19 September 2022