QKQ

[2022] NSWCATGD 11

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

QKQ [2022] NSWCATGD 11

Hearing dates:

3 March 2022

Date of orders:

3 March 2022

Decision date:

03 March 2022

Jurisdiction:

Guardianship Division

Before:

R H Booby, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
F N Given, General Member (Community)

Decision:

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

Androcur (Cyproterone Acetate) up to 400 mg daily 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 three month(s) from the date of this order.

Public Guardian, the appointed guardian for QKQ, is given the authority to consent to continuation of Androcur (Cyproterone Acetate) up to 400 mg daily.

The guardianship order for QKQ made on 27 March 2019 has been reviewed. The order now is as follows:

1. The Public Guardian is appointed as the guardian.

2. This is a continuing guardianship order for a period of three years from 3 March 2022.

3. This is a limited guardianship order giving the guardian(s) custody of QKQ to the extent necessary to carry out the functions below.

FUNCTIONS:

4. The guardian has the following functions:

a) Accommodation

To decide where QKQ may reside.

b) Health care

To decide what health care QKQ may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to QKQ.

e) Restrictive Practices

To give or withhold consent as to whether the following restrictive practices should be used to influence QKQ’s behaviour:

1. Chemical restraint;

2. Environmental restraint.

AUTHORITY

5. The guardian has the following authority:

a) Authority to consent to continuation of special treatment

i) The guardian may consent to the continuation of the special treatment which the Tribunal consented to on 3 March 2022. That special treatment is:

Administration of Androcur (Cyproterone Acetate) up to 400 mg per day

CONDITIONS:

6. The conditions of this order are:

a) Standard Condition

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

b) Restrictive Practices Condition

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

(i) as a last resort to prevent QKQ 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 QKQ, and which is reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.

Catchwords:

CONSENT TO MEDICAL TREATMENT – application for consent to special medical treatment – sexually inappropriate behaviour – involvement in the criminal justice system for sexual offences – anti-androgen medication to modify behaviour – Androcur (Cyproterone Acetate) – subject person not able to provide informed consent – whether the treatment is the most appropriate form of treatment to promote health and well-being – consent given for a limited period of three months.

GUARDIANSHIP – end-of-term review of a guardianship order – whether a further guardianship order should be made – subject person with an intellectual disability – need for decisions in relation to accommodation, services, health care, and medical and dental treatment – restrictive practices – chemical restraint – environmental restraint – authority to consent to continuation of special medical treatment – administration of Androcur – Public Guardian reappointed – order made.

Legislation Cited:

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

Guardianship Regulations 2016 (NSW), cl 14(b)

Cases Cited:

IF v IG [2004] NSWADTAP 3

P v NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

031: Review of Guardianship Order
QKQ (the person)
Public Guardian (appointed guardian)

Application for consent to special medical treatment
QKQ (the person)
EQG (applicant)

Representation:

Nil.

File Number(s):

NCAT 1993/00066853

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

Background

1. QKQ is 58 years old and lives in a group home in regional NSW.

2. On 27 March 2019 the Tribunal made a guardianship order appointing the Public Guardian for three months to make decisions for QKQ about his accommodation, services, health care, medical/dental treatment and restrictive practices used to manage his behaviour. The guardian was authorised to utilise the assistance of others to implement accommodation decisions,

3. On 27 March 2019 the Tribunal also consented to the administration of Androcur (Cyproterone Acetate) at up to 400 mg per day to QKQ. The consent was effective for one year and the Public Guardian was given authority to provide consent to the continuation of the Androcur administration.

4. The hearing on 3 March 2022 was the end of term review of the guardianship order.

5. On 3 March 2022 the Tribunal received an application from EQG, a GP, seeking consent to special medication for QKQ. The medication is Cyproterone Acetate (Androcur) at a dosage of 200 mg twice daily. We considered the application at the hearing on 3 March 2022.

The hearing

6. Due to restrictions necessitated by the COVID-19 pandemic, the Tribunal’s hearings are currently being conducted by way of telephone and, where possible, video communication.

7. At the end of these Reasons for Decision is a list of witnesses who participated in the hearing. [Appendix removed for publication.]

STATUTORY REVIEW OF GUARDIANSHIP ORDER

What did the Tribunal have to decide?

8. On reviewing the current guardianship order the Tribunal may renew, renew and vary the order or determine that the order is to lapse.

9. The questions to be considered by the Tribunal are:

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

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

• Who should be the guardian?

• How long should the order last?

10. Section 4 of the Guardianship Act 1987 (NSW) provides that it is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

1. the welfare and interests of such persons should be given paramount consideration,

2. the freedom of decision and freedom of action of such persons should be restricted as little as possible,

3. such persons should be encouraged, as far as possible, to live a normal life in the community,

4. the views of such persons in relation to the exercise of those functions should be taken into consideration,

5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

7. such persons should be protected from neglect, abuse and exploitation,

8. the community should be encouraged to apply and promote these principles.

Is QKQ someone for whom the Tribunal could make a further order because he continues to have a disability which prevents him from being able to make important life decisions?

11. Section 14 of the Guardianship Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he 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).

12. The term “social habilitation” is not defined in the Act. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J considered its meaning in the context of s 3(2) of the Guardianship Act, at [303]:

“The expression ‘social habilitation’ (in the context of references to ‘disability’, ‘restricted’, ‘major life activities’ and the word ‘requires’) may be taken to refer to a need for services to help a person to be, or become, able to function normally in community with others.”

13. The Tribunal has previously been satisfied that QKQ has an intellectual disability that restricts his ability to manage his person.

14. A Behaviour Support Plan devised by Mr Z in May 2021 indicates that:

1. QKQ has been assessed as having a mild to moderate intellectual disability with particular difficulties in attention, concentration, organising and planning and integrating information.

2. Past diagnoses have also included psychosis and borderline personality disorder, but it is not known if those are current diagnoses.

3. QKQ’s development has been hampered by past experiences including juvenile exposure to domestic violence and sexual abuse.

4. An adaptive behaviour assessment indicates that QKQ has weaknesses in socialisation and daily living skills and that his adaptive behaviour ability has diminished since previously assessed in 2020.

5. QKQ has had extensive involvement in the criminal justice system for sexual offences.

15. Taking into account the previous decision of the Tribunal and the lack of any more recent to the contrary, as well as the information canvassed above, we were satisfied that QKQ continues to have a number of conditions, the combined effect of which is to restrict his ability to manage his person such that he requires some assistance and supervision in his life in the community. He is therefore a person for whom the Tribunal could make a further guardianship order.

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

16. 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.

17. 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 is guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).

18. In the behaviour support plan, Mr Z indicates the following:

1. QKQ is at risk of sexual offending and sexually inappropriate behaviour with his sexual behaviour appearing to be impulsive and opportunistic. He also engages in verbal and physical aggression

2. In addition to proactive and supportive, ecological strategies recommended to assist QKQ to avoid the behaviours of concern there are some restraints that are considered necessary. These are:

1. Line of sight supervision;

2. Restricted access to cutlery and other sharps. This restriction was being phased out;

3. Regular and PRN medication to reduce anxiety and agitation

4. Androcur to reduce his libido and to address the risk of inappropriate sexual behaviour.

19. Mr Z records that QKQ lived at a disability centre from 1993 to mid-2020 when he moved to his current group home accommodation. QKQ told us that he is very happy in his accommodation.

20. Ms PC of the Public Guardian provided information to the following effect:

1. A disability service provider, the group home manager, has entered into receivership and a new provider will be taking over management of the group home. For that reason there is an ongoing need for a guardian to be appointed to make decisions for QKQ his accommodation.

2. The services at the house and QKQ’s Day Program and community access are funded under the National Disability Insurance Scheme and there is an ongoing need for a guardian to make decisions for QKQ about his services.

3. There are some concerns about QKQ’s health care planning and medication. She has attempted to contact Dr Y, who is QKQ’s psychiatrist, as Dr Y appears to have recommended an increase in QKQ’s Androcur due to increased incidence of sexualised behaviour. However Ms PC believes that Dr Y could be basing her recommendation on historical information that is no longer correct. She believes there have been no incidents of sexualised behaviour since QKQ has been in the group home.

4. She believes that QKQ should be seen for review by a forensic psychologist or forensic psychiatrist to review his Androcur treatment. She is pursuing an appropriate referral.

5. QKQ has some chronic health conditions such as osteopenia and arthritis and these require monitoring. She was of the view that there was need to reappoint guardian to make decisions for QKQ about his health care and medical/dental treatment.

6. With respect to restrictive practices used to manage QKQ’s behaviour, Ms PC indicated that previously physical restraint was authorised to enable QKQ to be given Midazolam. However this is no longer prescribed as a PRN medication.

7. She was of the view that there is a need for a guardian to consider the environmental and chemical restraints used to manage QKQ’s behaviour.

21. We were advised that QKQ’s parents and two of his siblings have died. He has some contact with his remaining sister and the disability service provider was reviewing ways in which he might travel to see her.

22. There was no evidence that previous order has adversely affected QKQ’s family relationships or his cultural and linguistic environment or that renewing the order would be likely to do so.

23. Having considered the evidence and reached the conclusions noted above we were of the view that there was a need to appoint a guardian to make decisions for QKQ about his accommodation, services, health care, medical/dental treatment and restrictive practices used to manage his behaviours.

24. As is indicated in the section of these Reasons regarding consent to special medical treatment, the Tribunal also considered the role of guardian in consenting to that treatment. We were of the view that any consent to the administration of Androcur that was longer than in the short term requires analysis of the possible side effects of long-term treatment at high doses of the medication and an assessment of incident reports in the context of the medication and ecological strategies used to manage QKQ’s behaviour. Noting that the Public Guardian has been seeking contact with Dr Y and seeks to arrange a forensic psychology or psychiatry review we were of the view that the Public Guardian should be provided with the function of consenting or not consenting to the treatment once the Tribunal’s consent expires in three months.

Who should be appointed as the guardian?

25. There was no private person available to be appointed as guardian, and we appointed the Public Guardian.

How long should the order last?

26. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made. We were satisfied that the decisions authorised under the order will remain necessary for QKQ for some years and so we made the order for three years.

APPLICATION FOR SPECIAL MEDICAL CONSENT

What did the Tribunal have to consider?

27. 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 wellbeing;

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.

28. In considering the above questions, the Tribunal must have regard to the views of QKQ, and EQG, the applicant, and the objects of Pt 5 of the Guardianship Act.

29. The objects of Pt 5 of the Guardianship Act as set out in s 42 of that Act are:

1. to ensure that people are not deprived of necessary medical or dental treatment merely because they lack the capacity to consent to the carrying out of such treatment, and

2. to ensure that any medical or dental treatment that is carried out on such people is carried out for the purpose of promoting and maintaining their health and wellbeing.

30. 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.

Is the proposed treatment ‘special treatment’?

31. The proposed treatment is the administration of Cyproterone acetate (Androcur) 200 mg twice daily.

32. The use of this anti-androgen medication to modify behaviour is “special treatment” as defined by cl 14(b) of the Guardianship Regulations 2016 (NSW).

Is QKQ incapable of providing consent to the proposed treatment?

33. 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.

34. As is indicated in the section of these Reasons dealing with the review of the guardianship order, we were satisfied that QKQ has an intellectual disability and some developmental issues that prevent him making important life decisions. During the hearing QKQ said that he was agreeable to the medication, which might make him sleepy. We were satisfied QKQ lacks a proper understanding of the nature and effect of the treatment.

What is the particular condition of the patient that requires treatment and What are the reasons for the proposed treatment?

35. In the application EQG indicates that the treatment is to reduce QKQ’s sexualised behaviour. However during the hearing EQG said that he has limited knowledge of QKQ’s offending and treatment needs and was seeking to prescribe the medication as a continuation of treatment prescribed when QKQ was at his previous accommodation, at the disability centre in regional NSW.

36. The Behaviour Support Plan indicates that QKQ had been convicted of a number of sexual offences. Mr Z said that since he has been in the group home QKQ has not engaged in sexualised behaviour though there have been reports of attempts to engage with children.

What are the alternative options for treatment that are available?

37. As noted above QKQ’s current Behaviour Support Plan includes a number of supportive and proactive strategies to assist QKQ to avoid his behaviours of concern that include the sexualised behaviour.

38. During the hearing Mr Z said that currently QKQ’s group home is staffed only by males as a preventative measure. However QKQ is responding well to the ecological strategies and they are starting to plan for the possible introduction of female staff and will also consider whether the medication dosage could be reduced. He also indicated that QKQ’s declining mobility was such that the risk of impulsive and opportunistic sexualised behaviours was reduced and that strategies such as 1:1 supervision when the community were of assistance in preventing the behaviour.

Are there any risks associated with the proposed treatment?

39. EQG said that there are risks of clotting associated with the use of the medication and a risk of adverse effects on the heart. He said that the medication was ceased when QKQ had COVID-19 and that his cholesterol and blood pressure is monitored. In respect of the risk of osteoporosis, EQG noted that QKQ is osteopenic but noted that a bone density scan in 2019 showed improvement on a scan conducted in 2014. He noted that QKQ was due for a renewed scan.

40. The Tribunal referred to medical literature that suggests that there may be an increased risk of meningioma in patients who take large doses of Androcur over a long period. At 400 mg per day, QKQ is receiving a high dose of the medication.

41. Ms PC said that the Public Guardian’s information indicated that QKQ has been receiving the medication for more than 20 years. As noted above in the section of these Reasons dealing with the review of the guardianship order, Ms PC said that she has been seeking contact with Dr Y, QKQ’s psychiatrist, to discuss the dose of Androcur because she believes that in recommending an increased dosage, Dr Y may be acting on incorrect information.

42. EQG undertook to review the literature regarding the risk of meningioma and to consider the appropriateness of QKQ’s dosage of Androcur.

What are the views of QKQ?

43. QKQ was supportive of the ongoing administration of the medication saying that it helped him.

How will the proposed treatment promote and maintain the patient’s health and wellbeing?

44. Mr Z said that there have been no incidents of sexualised behaviour over the past two years that QKQ has been at his current group home and that the ecological strategies and medication are effective. He was supportive of the medication dosage being reduced. However he was of the view that a reduction should be delayed pending the introduction of female staff into the group home. He also said that QKQ’s group home is in proximity to a community centre that is sometimes frequented by children and that the medication and other strategies assist to ensure that QKQ does not seek to engage with the children.

45. We were satisfied that the medication continues to promote QKQ’s health and wellbeing by allowing him access to the community with reduced risk of involvement in the criminal justice system. It is also of assistance in providing an opportunity to provide more diverse staffing of his group home and a more normal home environment and access to his Day Program.

Is the proposed treatment the most appropriate treatment?

46. The Tribunal accepts that the proposed treatment is currently the most appropriate treatment in the conjunction the ecological strategies.

47. We are concerned that QKQ has been prescribed the medication at a high dose over many years and are of the view that it is appropriate that the dosage be reviewed with concurrent incident recording to assess whether the medication continues to be required and if so, at what dosage to this end we note that Mr Z, EQG and the Public Guardian are committed to reviewing the ongoing use and dosage of the medication.

Does the proposed treatment comply with the relevant guidelines?

48. The Tribunal is not aware of guidelines regarding the use of this medication in these circumstances.

Conclusion

49. Taking into account the issues and evidence canvassed above, we were satisfied that it was appropriate for the Tribunal to consent to the ongoing administration of the Androcur at up to 400 mg daily, for a limited period of three months only. We were of the view that within that time the use and dosage of the medication can be reviewed.

50. We were of the view that the Public Guardian should be authorised to provide consents or otherwise at the expiry of the Tribunal’s consent and that in making that decision the Public Guardian would have access to additional considerations including contact with Dr Y and EQG’s consideration of the issues raised during the hearing.

51. Ms PC consented to the Public Guardian being authorised to make future decisions about the administration of the medication for the period of the guardianship order.

**********

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