NN – Review of Guardianship Order on the application of the Public Guardian and Application for Consent to Medical Treatment on the application of XXX
[2012] TASGAB 25
•31 August 2012
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
NN – Review of Guardianship Order on the application of the Public Guardian and Application for Consent to Medical Treatment on the application of XXXX
NN (Review Guardianship and Medical Consent) [2012] TASGAB 25
REASONS FOR DECISION
Anita Smith (President)
Date of hearing 31 August 2012
Guardianship – consent to medical treatment – whether limited guardianship order or determination for consent to medical treatment is the least restrictive alternative – whether least restrictive alternative is theoretical or practical – best interests – role of person responsible – term of order made on review
Guardianship and Administration Act 1995 ss 6, 11(2), 20(2) and (4), 25(1), 26(1), 40, 41, 43, 44, 45, 67
Guardianship and Administration Regulations 2007 reg. 7
United Nations Convention on the Rights of Persons with Disabilities, Art. 12
Stuart v Kirkland-Veenstra [2009] HCA 15
Re M. & R and Guardianship and Administration Board (1988) 2 VAR 213
McDonald v Guardianship Board [1993] 1 VR 521
Public Trustee v Blackwood [1998] TASSC 130
Edwards v Edwards [2009] VSC 190
BND (Review of Administration) [2012] TASGAB 3
NN is a 52 year old man. He lives in shared accommodation that is supported by XXXX, a disability service provider. He has been the subject of continuous limited guardianship orders since 2003. The latest guardianship order was due for review on 19 February 2012. In her final annual report to the Board under the terms of that order, the Public Guardian suggested that a determination by the Board to consent to medical treatment may be as effective and a less restrictive alternative to the continuation of the limited guardianship order.
When the order was reviewed by the Board on 16 February 2012, there was no application before the Board to give consent to medical treatment pursuant to section 44 of the Act, meaning the Board was not in a position to substitute one order for another. Therefore proceedings were adjourned to enable the making of an application. A limited guardianship order was made on an interim basis during the adjournment. The matter returned to the Board on 31 August 2012 with an application pursuant to section 44 and an application for review of the guardianship order pursuant to section 67 listed before the Board simultaneously on the understanding that the applications were alternatives.
NN did not attend the hearing as he would not understand the proceedings and may become distressed at the disruption of attending a hearing. Attendees at the hearing included representatives from XXXX and the Deputy Public Guardian.
Circumstances of the Guardianship Order:
NN has a moderate intellectual disability and has been diagnosed with the rare genetic condition, Cri du Chat. He was institutionalized at Willow Court and moved to a home supported by XXXX in 1995. There is no record of any contact with NN’s family. He has limited expressive and receptive communication. Reports indicate that he is sociable, but self-absorbed, and forms attachments to particular staff members who he knows well. In 2000, he displayed significantly challenging behaviour involving property damage, banging his head, punching and biting. With this behaviour, he inadvertently injured himself. Dr. Wurth described the behaviour as an attempt to control his environment. NN has episodes which have been labeled ‘George mode’ where he is particularly agitated and runs through his house, shaking his fists and saying “George”. All of this behaviour has been reduced over time with treatment with antipsychotic drugs. Medical Reports before the Board[1] confirm that NN continues to require this treatment, that he does not have capacity to understand the nature and effect of these treatments and that it is unlikely that he will ever gain capacity to make decisions about treatment.
[1]Reports by Dr. Peter Wurth FRANZCP Consultant Psychiatrist (2000, 2001, 2009), Dr. Nick Cooling GP (2002, 2005), Dr. H. Perry GP (2012)
The Board’s file indicates that in 2003 the Board dismissed an application for consent to medical treatment and appointed the Public Guardian as his guardian instead, however reasons were not recorded. Annual reports from the guardian indicated that she gave consent for three teeth to be extracted but refused consent for the removal of six others in 2004. She approved a health care plan for him in 2007. He had constant concerns with helibacter pylorus in 2008-9 requiring multiple doses of antibiotics and due to an increase in his behaviours, his dosage of an antidepressant medication, Lovan. Further consents for dental treatment were given in 2011. In addition, her consent has been continuously relied upon for consent to the behavior controlling medication.
The Board was particularly grateful to XXXX for carefully compiling detailed tables of the medications, dosages and changes in NN’s medication. Those tables indicated that since the appointment of the guardian there have been medication trials to establish whether ‘George mode’ was in fact a type of seizure, and there have been six alterations to his behaviour-controlling medication regime. He is currently administered two drugs, antidepressant, fluoxetine, and antipsychotic, risperidone. Both drugs have a known range of serious side-effects. Representatives from XXXX noted that remarkable achievements have been made over time in controlling NN’s behaviours, in improving the medications and reducing the dosages that are applied towards those behaviours. These achievements have resulted in improving NN’s quality of life and general wellbeing.
Although XXXX became the applicant for consent to medical treatment, representatives of that organisation were ambivalent about which order would be more suitable. They expressed concerns that if medication should change again, this would require a fresh application and hearing on each occasion whereas the appointment of a guardian allows for flexibility in treatment options. Their concern was that the necessary procedural delays in seeking the Board’s consent would result in less than optimal treatment for NN, whereas the guardian is able to respond more quickly using information acquired in the historical and ongoing guardianship relationship rather than by taking evidence as the Board is required to do.
The Board’s framework for consideration of the applications:
Regulation 7 of the Guardianship and Administration Regulations 2007 states:
“7. For the purposes of section 41(2) of the Act, the cases where medical or dental treatment may not be carried out on a person to whom Part 6 of the Act applies without consent under Division 2 of that Part are those where –
(a) the treatment is continuing or ongoing and involves the administration of a restricted substance primarily to control the conduct of the person to whom it is given; …”
As with the ‘special treatments,’ listed in section 3 and regulation 6, there is no clinical or diagnostic relationship between the treatments listed in regulation 7. The relationship is historical and arises from what was seen as the worst abuses of institutionalization, i.e. treatments that assisted in institutional control rather than individual wellbeing or treatments that were particularly brutal in their effect.
In enacting this legislation, the Tasmanian Parliament created certain categories of treatments in a hierarchy according to the human rights considerations, the reversibility and the risks associated with those treatments. At the worst end of the scale were ‘special treatments’, such as sterilisation, terminations of pregnancy, removal of all of a person’s teeth and the application of aversive stimuli. Consent to these treatments, for a person who lacks decision-making capacity, may only be given by the Board in accordance with the statutory tests in section 45.
In the next level down are treatments which can be consented to by a ‘person responsible’ or the Board but cannot be performed without some active consent by a person outside the treating team. These are regulation 7 treatments. Such treatments had been open to abuse, but rights protection could be adequately performed by a lay person acting in accordance with the statutory tests in section 43.
Treatments not listed as ‘special treatments’ or regulation 7 treatments, which I shall refer to as residual, can also be consented to by the ‘person responsible’ or the Board where the treatments meet the criteria in sections 43 or 45 respectively. Where a prospective patient has no person responsible, residual treatments can be given to a submissive but incapable patient without any formal consent, so long as a practitioner meets the administrative requirements in section 41. If a patient without a person responsible objects to treatment in this residual category, the consent of the Board is required, except in emergencies. In other words, rights protection in the residual category of treatments can be assured simply through good medical practice, except where the patient objects to treatment.
Because (i) the person who is subject to these applications lacks capacity to consent to this treatment, (ii) the medical treatment is a regulation 7 treatment and (iii) there is no person responsible available to give consent to this treatment, consent must either come directly from the Board, or the Board can appoint the Public Guardian to act as person responsible.
While it is unusual to consider two applications concurrently, in this case the Board had little option. The Public Guardian had suggested that a section 45 order would be less restrictive than the continuation of the guardianship order, but the Board could not assess a review application against an hypothesis. Given the ongoing need for medication, the Board could not discontinue a guardianship order without there being a facility for consent to ongoing treatment. Hence both applications were heard simultaneously and the Board considered this to be acceptable given the circumstances and the permissions afforded to the Board by section 11(2) of the Act.
However, in hearing the two applications together the Board must assess not only whether the elements of section 20 and section 45 are established, but also which of the two outcomes is the most appropriate. Evidence provided to the Board was sufficient to satisfy either application. Section 6 establishes the framework by which the Board will assess which of the applications ought to succeed. That is that the Board will perform its functions in this case so that –
“(a) the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; and
(b) the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and
(c) the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect.”
The Board is satisfied on the basis of the medical reports[2] that NN is unable to form or express any wishes with respect to the matters that the Board is considering. Therefore, this application will require an assessment of which application will result in the least restriction to NN’s freedom of decision and action and which application will promote his best interests.
Which application will result in the least restriction to NN’s freedom of decision and action?
Theoretical consideration of autonomy:
[2]See footnote 1.
Section 20(2) states:
“In determining whether or not a person is in need of a guardian, the Board must consider whether the needs of the proposed represented person could be met by other means less restrictive of that person's freedom of decision and action.”
Section 20(4) states:
“The Board must not make an order appointing a full guardian unless it is satisfied that an order for limited guardianship would be insufficient to meet the needs of the proposed represented person.”
Section 45 of the Act does not specifically require that the Board consider a less restrictive alternative before giving consent to a medical treatment, but in any event section 6 imposes that requirement.
In Stuart v Kirkland-Veenstra [2009] HCA 15 (at p. 98), the High Court examined the principle of ‘least restrictive alternative’ noted that the concept “reinforces the importance of that value of personal autonomy which must inform the development of the common law.” In this case, the medication that is administered to NN essentially maintains or improves his quality of life. The operation of regulation 7 means that there is no facility for NN to continue having these treatments and retain autonomy with respect to treatment decisions. To adopt the language used in Blackwood v Public Trustee TASSC 130/1998 at p 6-7, there is no distinction in this case between NN’s ‘needs being met’ and his being ‘in need of a guardian’ with respect to the treatment he receives.
From subsections 20(2) and (4) it is clear that (i) no guardianship order is less restrictive than an order and (ii) that a limited guardianship order is less restrictive than a full order. One would presume that the same reasoning would apply with respect to any determination of the Board, including a determination for consent to medical treatment, i.e. that any consent by the Board must be as limited (or specific) as possible. See, for instance: Re M. & R and Guardianship and Administration Board (1988) 2 VA.R. 213 at pp 219–21, McDonald v Guardianship Board [1993] 1 VR 521 at pp 531-532, Public Trustee v Blackwood [1998] TASSC 130 at pp 6-7 and Edwards v Edwards [2009] VSC 190 at paragraph 26. However, there is not, so far as I have been able to ascertain, any case law or legislative provisions that assist in deciding whether a guardianship order is more or less restrictive than a determination by the Board for consent to medical treatment.
Both a guardianship order limited to decisions about health care and a determination by the Board to consent to particular medical treatments remove NN’s personal autonomy to make decisions about treatment. Because of his extremely low level of capacity, NN’s expression of personal autonomy with respect to any treatments is extremely limited and neither course would particularly promote his autonomy more than the other. For instance, a determination limited to consent to specific behaviour-controlling treatments would not mean that NN is, in any practical way, autonomous regarding decisions about other treatments that were not related to behaviour control because it is most likely that such treatments would be administered pursuant to sections 40 (treatment in emergency) or 41 (treatment of a patient who is incapable but compliant) of the Act, which do not require formal consent or active participation in decision making by NN.
It might be argued that the establishment of a guardianship relationship is more restrictive because it puts NN into a parent-child style of relationship as described in section 25(1) of the Act. However, section 25(1) only applies to a full guardianship order. By contrast, section 26(1) provides that a limited guardian has only those powers and duties which the Board may specify in the order.
(ii) Measures related to legal capacity:
Article 12 of the United Nations Convention on the Rights of Persons with Disabilities emphasises the importance of monitoring and review processes when implementing measures regarding a person’s legal capacity. Part 4 of the Act relating to a guardianship order have inbuilt monitoring systems such as the requirement to report to the Board annually and the ability to review the orders periodically. Part 6 of the Act does not provide any review or reporting facilities or any procedures by which consent to ongoing treatment might be withdrawn, possibly because it was developed to facilitate one-off consents to surgical procedures more than it was developed to facilitate the consent to ongoing administration of drugs. Therefore a determination pursuant to Part 6 could technically be made once and not monitored or reviewed for the rest of the person’s life. In this sense, such a consent determination is more restrictive than a limited guardianship order. In practice, the Board has made Part 6 determinations conditional on reporting conditions, but these orders do cause concerns with respect to the issues expressed by Underwood J. in Public Trustee v Blackwood [1998] TASSC 130 at p 9 about self-executing orders.
(iii) Practical considerations of autonomy:
The Board considers that a guardianship order limited to ‘health care’ is theoretically broader (and therefore more restrictive) than a consent to medical treatment specifying particular treatments. However, consideration of NN’s freedom of decision and action is more than theoretical. If he was not provided with these treatments, it would severely limit his autonomy and participation in the life of the community. Equally, if he is overmedicated or inappropriately medicated, it will also inhibit his autonomy and participation in the life of the community. The anticipated delays in adjustments to the Board’s consent might have either of those effects and could therefore be more restrictive if NN’s access to the community was limited while his behaviours were untreated or over-treated waiting for the determination of an application to the Board.
Which application will promote NN’s best interests?
Noting the arguments above about possible delays in adjustments to treatments, the Board considers that the benefits of the ongoing and flexible relationship with a limited guardian is more likely to serve NN’s best interests than a determination for consent to specific treatments by the Board.
Additionally, the Board considers that having a relationship with a person external to the accommodation provider and the medical professionals enhances the range of rights protections available to NN. NN is compliant or submissive with treatment. His needs are primarily attended to by staff at XXXX and his medical team. The presence of an independent broker, the guardian, to assess his needs and best interests provides a secondary level of protection for NN. Active monitoring of the guardianship appointment by the Board provides a tertiary level of protection of his rights and interests. This means that there are prompts and responsibilities for external review to ensure that he remains in need of treatment for his benefit and not for the benefit or convenience of others.
In essence, the appointment of a guardian limited to health care powers establishes the Public Guardian as NN’s person responsible. By operation, sections 4 and 43 of the Act provide that persons with decision-making disabilities who have ongoing relationships with spouses, unpaid carers, family members or friends have a permanent person responsible to make decisions on medical treatment. Decisions by persons responsible are not subject to any control by the Board. It is not a legislative requirement that decisions of persons responsible have any external scrutiny by reports or reviews. By appointing the Public Guardian as an ongoing person responsible, the Board has provided no more than would be available for other persons with decision-making disabilities who have family or friends except that this appointment has an added level of protection in the facilities of reports and reviews.
Term of guardianship:
In BND (Review of Administration) [2012] TASGAB 3 at paragraph 28, the Board set out reasons why an order made on review is not limited to a three year term as an initial order is. The Board relies upon those reasons with respect to this application.
NN has required a form of antipsychotic treatment to control his behaviour since at least 1966. It is exceptionally unlikely that there will be any change to his capacity to make decisions about health care or his need for a guardian to consent to the antipsychotic treatment. Noting that the Board continues to monitor the guardianship appointment through the receipt of annual reports, the Board does not consider that the appointment needs to be reviewed until such time as there may be a need to consider accommodation issues because of his ageing. Therefore, noting the agreement of the two applicants to the hearing, the Board considered it was appropriate to continue the order until shortly prior to NN turning 65 years of age.
Conclusion:
The Board’s view is that, in this case, the marginal loss of autonomy between a specific consent to treatment and a guardianship order limited to health care is outweighed by the benefits of flexibility in treatment decisions and the independent protection afforded by the guardianship relationship.
The application for consent to medical treatment is dismissed.
After hearing a review of a guardianship order made 20 February 2009 in respect of NN (hereinafter called the ‘represented person’) whereupon the Public Guardian was appointed guardian of the represented person
The Board was satisfied that the represented person
•is a person with a disability, and
•is unable by reason of the disability to make reasonable judgements in respect of his person and circumstances, and
•is in need of a limited guardian;
THE BOARD ORDERS
- That the Public Guardian continue as the represented person’s guardian.
- That the powers and duties of the guardian are limited to decisions concerning consent to any health care that is in the best interests of the represented person and to refuse or withdraw consent to any such treatment.
- That this order be reviewed prior to the represented person turning 65 years old.
Anita Smith
PRESIDENT
0
4
0