QBK (Medical Consent)

[2017] TASGAB 22

GUARDIANSHIP AND ADMINISRATION BOARD
HOBART

QBK – Application for medical and dental treatment

QBK (Medical Consent) [2017] TASGAB 22

REASONS FOR DECISION

Rowena Holder (Chair)
Grant Kingston (Member)
Louise Mollross (Member)

Date of hearing: 23^rd November 2017

Consent to medical and dental treatment

Guardianship and Administration Act 1995 s. 44, 45, 69

1. On 23^rd November 2017 the Guardianship and Administration Board (the Board) heard Applications for consent to medical and dental treatment dated 23^rd March 2017 and 18th October 2017 for QBK. Both applications proposed medical and dental treatment for QBK and were couched in similar terms. The Board dealt with the applications together.

2. The Board had part heard the application for consent to medical or dental treatment dated 23^rd March 2017 on the 4^th May 2017 together with an application for guardianship.  At that hearing there was no evidence before it as to what dental treatment was sought and no dental clinician from Oral Health Services was in attendance.   No order was made in respect to the application for consent to medical or dental treatment and no outcome determined.  The Board however made a guardianship order on the 4^th May 2017 which concerned (i) consent to any healthcare that is the in the best interests of the proposed represented person and to refuse or withdraw consent to any such treatment; (ii) consent to dental treatment, including general anaesthetic as recommended by a qualified dental practitioner.

3. Present at the hearing on the 23^rd November 2017 were Dr Ioan Jones, Senior Clinician of Oral Health Services; Mark Jessup, CEO of Nexus; Ms Alison Hodges, applicant and Manager of Client Support at Nexus; Ms Kathleen Williams, House Manager, Nexus and through the course of the hearing, Dr Martin Neuberger, was contacted by telephone.  QBK did not attend the hearing.

4. The Board had the following documents before it:

   ·       Applications for Consent to medical or dental treatment dated 23^rd March 2017 and 18^th October 2017

   ·       Health Care Professional Report dated 23/03/2017

   ·       Nexus Client Profile dated August 2008

   ·       Consent to Medical Procedure/Treatment and Request for Admission form dated 20/01/2017

5. The Office of the Public Guardian has requested a Statement of Reasons in relation to the Board’s decision.

6. The Board had two available courses open to it.  It could dismiss both applications for consent to medical and dental treatment given there is a guardianship order or alternatively deal with the applications for medical and dental treatment and consider reviewing the guardianship order. The Board determined to hear the applications for consent to medical and dental treatment, particularly as it had Dr Jones from the Oral Health Services and Dr Neuberger, general practitioner able to give evidence, which it did not when it heard the applications on the 4^th May 2017.

The Board’s framework for consideration of the applications:

1. When the Board receives an application for consent to medical or dental treatment, it must be satisfied of the tests in Part 6 of the Guardianship and Administration Act 1995 (the Act) which are set out in section 45 as follows:

   Whether:

   (a)       the proposed medical treatment is otherwise lawful
   (b)       QBK is incapable of giving consent (as defined in section 36, namely   whether he is incapable of understanding the general nature and effect of the                  proposed treatment)
   (c)       the medical treatment would be in QBK’s best interests

2. For the purposes of determining whether the proposed medical and dental treatment would be in QBK’s best interests, matters to be taken into account by the Board include:

   (a)           QBK’s wishes

   (b)           the consequences to QBK if the proposed treatment is not carried          out; and

   (c)           any alternative treatment available to QBK

   (d)          whether the proposed treatment can be postponed on the ground that    better treatment may become available and whether QBK is likely to       become capable of consenting to the treatment

3. The Board was satisfied, for the purposes of section 44(1), that the applicant, who is the Client Support Manager at Nexus Inc has a proper interest in the matter. QBK has been a resident at Nexus since mid-1990, after transferring there from Hobart.  QBK does not have contact with any family members.

4. The dental treatment proposed is a dental examination under general anesthetic and any dental work which arises from the dental examination.  The medical treatment proposed is taking blood samples from QBK while he is under general anesthetic for the purpose of checking his renal function, namely his liver and kidney function. The Board was satisfied that the treatment is ‘otherwise lawful’ for the purposes of section 45(1)(a) of the Act.

5. A Health Care Professional Report had been received from Dr Martin Neuberger dated 23^rd March 2016.  Dr Neuberger indicates that QBK has a diagnosis of Fragile X Syndrome, evident since birth and is unable to understand the nature and effect of medical or dental treatment. QBK is non-verbal.  Those in attendance at hearing concurred with this evidence.  The Board was satisfied for the purposes of section 45(1)(b) that QBK is incapable of giving consent to medical or dental treatment.

6. The main objective of treatment is to ensure QBK enjoys good oral health and oral hygiene and good renal health.  It is a normal practice for all persons to have regular dental checkups and to ensure any dental treatment which may arise from the dental examination is attended to.  No alternative dental care is available.  A general anesthetic is required as QBK is unable to cope with a dental examination in a dental chair in a clinic setting.

7. The Board received evidence that Fragile X causes intellectual disability, and behavioral challenges and is on the autism spectrum.  The Applications state that “due to QBK’s disability (Fragile X) he is tactile defensive, has behavioral and anxiety issues, he is resistant to all types of medical or similar procedures.” The Board was advised that QBK avoids physical contact and rarely allows people to touch him.  Dr Neuberger gave evidence that QBK does not come to his surgery as he is too agitated but instead he makes home visits. While QBK is under general anesthetic the purpose of taking blood samples is so his renal function can be checked and monitored. No less intrusive alternative to checking renal function is available. Dr Neuberger stated that it would be impossible to get blood from QBK and that QBK becomes too agitated for him to even hold a stethoscope to his chest. The Board is satisfied pursuant to section 45 (1)(a) of the Act, that the proposed medical and dental treatment would be in the best interests of QBK.

8. Section 45(2)(d) was not relevant to this application.

9. Dr Jones gave evidence that Oral Health Services have dental records relating to QBK from 1990. With regards to any possible side effects from the dental treatment, Dr Jones indicated that QBK has visited the service previously and had dental treatment before under general anesthetic, with nil side effects. Dr Jones noted that QBK had several teeth extracted under general anesthetic in 1994, and since then only maintenance had occurred including small fillings and cleaning.  Dr Jones stated that in 2011 a dental examination had been scheduled under general anesthetic but QBK was not in a state to proceed given his high levels of agitation. Consequently the proposed examination and general anesthetic was cancelled.

10. With regards to any possible side effects from taking pathologies, the risk is extremely low. Dr Neuberger said a possible side effect of taking pathologies would be perforating a vein.  Dr Neuberger stated the risk is very minimal, particularly given the skilled medical professionals at the Royal Hobart Hospital.

11. Taking into account each of the factors in section 45, the Board was satisfied that that the proposed dental and medical treatment should proceed.  The commencement of the treatment was not urgent and so appeal waiting periods were required.

Conclusion

1. The Board was satisfied that

   ·       the medical and dental treatment is otherwise lawful, and

   ·       the patient is incapable of giving consent to the medical treatment and dental examination and any subsequent dental treatment under general anesthetic, and

   ·      the medical and dental treatment would be in the patient’s best interests

   ·      that the medical and dental  treatment is not urgent for the purposes of section        

   69(3)(b) and 45(4)

2. The Board considered the length of the consent period. The Board heard evidence from Dr Jones that QBK is on the Oral Health Services waiting list and the dental examination and blood tests under general anesthetic should proceed in the first half of 2018. Dr Jones spoke generally about the waiting lists and indicated that it would be another 2+ years after this dental examination would QBK be at the top of the waiting list again.  The Applicant requested the Board to make a longer order, which was interpreted to cover a number of dental examinations, taking into account the Oral Health waiting lists. The Board determined to give consent for 5 years, to allow QBK to hopefully have at least 2 examinations for dental treatment during that time. The Board also noted at the conclusion of proceedings that it will proceed in reviewing the Guardianship Order.

THE BOARD consents to dental treatment for the patient comprising of dental examination under general anesthetic and any dental work arising from the examination.

THE BOARD consents to medical treatment for the patient comprising of taking blood samples under general anesthetic so that renal function can be checked.

The Order 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; and then from that date will be in effect for 5 years.

Rowena Holder  Louise Mollross  Grant Kingston
PRESIDENT   MEMBER  MEMBER

Dated: 20^th December 2017