QKS

[2021] NSWCATGD 37

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

QKS [2021] NSWCATGD 37

Hearing dates:

24 June 2021

Date of orders:

24 June 2021

Decision date:

24 June 2021

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 QKS:

Administration of up to 300mg daily of Cyproterone Acetate (Androcur) 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 12 month(s) from the date of this order.

This consent is effective even though QKS objects to the treatment.

Catchwords:

CONSENT TO MEDICAL TREATMENT – application for consent to special medical treatment – androgen reducing medication for the purpose of behavioural control – Androcur (Cyproterone Acetate) – patient with an intellectual disability and paedophilic tendencies – patient exhibits disinhibited sexualised behaviour – patient not able to provide own consent – whether the treatment is the most appropriate form of treatment to promote health and well-being – consent given.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 33(2), 42(2); Pt 5

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

Cases Cited:

None cited.

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

002: Consent to Special Medical Treatment

QKS (the person)
KGP (applicant)
LZS (carer)

Representation:

Solicitors:

H Seares, of Legal Aid, as separate representative for QKS

File Number(s):

NCAT 2021/00044236

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. QKS is 29 years old and lives in East Sydney in NSW with his family.

2. On 16 February 2021 the Tribunal received an application seeking the appointment of a guardian for QKS.

3. On 10 March 2021 the Tribunal received an application seeking consent for special medical treatment for QKS. The applicant was KGP, a Consultant Forensic Psychiatrist who sought consent for the administration of Cyproterone (Androcur) at up to 150mg twice a day to QKS for the purposes of treating sexually disinhibited and inappropriate sexual behaviours occurring in the context of QKS’s intellectual disability.

4. On 12 March 2021 the Tribunal ordered that QKS be separately represented in the proceedings and made directions regarding the submission of evidence by KGP. Ms Helen Seares participated in the hearing as the separate representative.

5. On 14 April 2021 the Tribunal made a guardianship order and appointed Mr Z, who is QKS’s brother-in-law, as his guardian for two years to make decisions for him about his health care, medical/dental treatment and restrictive practices used to manage his behaviour. The Tribunal adjourned the application for special medical treatment. That application was again adjourned on 13 May 2021.

6. The hearing on 24 June was the hearing adjourned from 13 May 2021.

The hearing

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

What did the Tribunal have to consider?

8. When considering an application for consent to special treatment, 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/her best interests; and

4. The proposed treatment complies with any relevant National Health and Medical Research Council guidelines.

9. In considering the above questions, the Tribunal must have regard to the views of QKS and the objects of Pt 5 of the Guardianship Act 1987 (NSW).

10. 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’?

11. Cyproterone is an androgen reducing medication. Clause 14(b) of the Guardianship Regulations 2016 (NSW) establishes that any treatment that involves the use of androgen reducing medication for the purpose of behavioural control is special medical treatment as defined by the Guardianship Act.

12. In the application the purpose of the medication is described as being to treat QKS’s sexually inappropriate behaviour related to his intellectual disability. We are satisfied that the proposed use of the medication is for the purposes of behavioural control and therefore that the proposed treatment is special medical treatment.

Is QKS incapable of providing consent to the proposed treatment?

13. 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.

14. In the application KGP expresses the view that QKS is not able to provide his own consent to the treatment because of his intellectual disability. During the hearing he reiterated this view.

15. A Positive Behaviour Support Plan devised in October 2020 by Ms Y includes the following:

1. QKS has been diagnosed with Level 3 Autism Spectrum Disorder and with a borderline to mild intellectual disability and anxiety. He has no capacity to regulate his own behaviour

16. In a Health Professional Report Form, Ms X, a psychologist, indicates that in her view:

1. QKS has a mild intellectual disability and a moderate level of anxiety that is triggered by frustration at being told what to do.

2. QKS has autism and his symptoms of that condition include deficits in communication and social skills. He has repetitive behaviour and fixations especially about particular females and about accessing children.

3. QKS lacks the capacity to comprehend and make decisions around his health and medical care and is unable to weigh up the benefits and side effects of treatment and is unable to understand the long-term consequences of medication or treatment.

17. During the hearing QKS seemed unable to properly understand the proceedings and seemed fixated on being permitted to go out alone. To the extent that he understood that he was being asked about consent to treatment he said that he was opposed to treatment.

18. Ms Seares said that she had spoken to QKS about the proposed treatment and had formed the view that he lacked an understanding about the issues caused by his behaviours and about the usefulness of medication. She considered him unable to provide his own consent to the treatment.

19. We were satisfied in the evidence before us that due to the combined effects of his diagnosed conditions QKS lacks an understanding of the issues arising from his behaviour and the need to control them and the nature and effect of the proposed treatment. We were satisfied therefore that he is not able to provide his own consent to the proposed treatment.

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

20. The Positive Behaviour Support Plan devised in October 2020 by Ms Y includes the following:

1. QKS is fixated on small children and vulnerable people and watching them defecate. He has also threatened people with knives and has previously been charged with assault.

2. A safety plan for QKS sets out precautions to be taken for the safety of QKS, his family and people in the community when QKS accesses the community. It includes precautions to be exercised regarding possible contact with young children and possible aggressive behaviour.

3. Environmental restraints are in place to prevent QKS from accessing the community alone.

21. In her report Ms Y notes that:

1. QKS displays repetitive and intense fixations around accessing children and vulnerable females. This includes him attempting to leave support staff to approach children or go to a school. He saves photographs of different local school children and notes their school uniforms and reports a desire to take children or vulnerable females to the toilet and watch them defecate and to masturbate.

2. QKS attempts to inappropriately touch or kiss female participants at his day programme and will approach children in the community to initiate conversations usually about faecal matter.

3. QKS’s behaviours of concern represent a high risk of causing serious harm to members of the community and serious consequences for himself, including high risk of potential criminal charges.

22. In a letter dated 12 October 2020, Dr V provides the following information

1. QKS is prescribed Risperidone and Anafranil for the treatment of obsessive compulsive disorder and high levels of anxiety.

2. QKS is “stuck on” limited themes especially his desire and right to “make friends” with children which include things like taking their pants down and taking them to the toilet and watching defecation and urination.

3. QKS’s preoccupation with these matters had intensified and he needed constant close supervision as he was often trying to abscond.

What are the reasons for the proposed treatment?

23. The treatment is proposed to reduce QKS’s testosterone levels and thereby reduce the incidence and intensity of his problematic sexual behaviours.

24. In a letter dated 3 November 2020, Ms W, a Principal Forensic Psychologist, indicates that she had been approached to provide specialist intervention to assist in managing QKS’s problematic sexual behaviour. She notes a recommendation that QKS be assessed as to his suitability for anti-libidinal medication and states it is anticipated that the use of such medication will allow for QKS’s preoccupation to reduce, thus allowing him to better engage meaningfully in psychological intervention as well as reducing the frequency and intensity of his behaviour. Once QKS is able to meaningfully engage in psychological intervention it would be possible to commence regular and frequent sessions to address the factors associated with his problematic sexual behaviour and to develop a management plan. In her view it is essential that QKS’s management involves intensive and multidisciplinary involvement. During the hearing we were advised that Ms W was now of the view that psychological therapy was unlikely to be effective with QKS.

25. In his letter dated 12 October 2020, Dr V states that he had considered the use of testosterone reducing medication but had noted that at the level of 12, QKS’s testosterone level was at the bottom of the normal range. Dr V doubted that suppressing the testosterone would make a difference to QKS’s behaviour. He also questioned whether QKS’s motivation is truly sexual in a normal sense. However he expressed the view that as there are no other avenues of intervention, a trial of Androcur might be worthwhile.

26. QKS’s mother, LZS, said that she believes that QKS’s behaviour results from social factors with a significant sexual component.

27. KGP expressed the view that QKS’s behaviour is sexually driven. He was also of the view that a relatively low testosterone level does not prevent anti-libidinal medication being useful in addressing inappropriate sexual activity and said that the medical literature suggests that the important variable is the percentage change in levels in a particular individual. He referred to research that suggested a reduction of one third in pre-treatment testosterone levels was an appropriate treatment target.

What are the alternative options for treatment that are available?

28. The Behaviour Support Plan referred to above includes proactive strategies and restrictive practices to address QKS’s problematic sexualised behaviours. As noted above, psychological treatment had been proposed but more recently has been assessed as being unlikely to be effective.

29. We were provided with a number of incident reports indicating repetitions of the problematic sexual behaviours, and as indicated by Dr V and KGP the behaviours appear to be increasing in frequency.

30. We were satisfied on the evidence that additional strategies are in place and will continue to be used concurrently with the proposed treatment, but that alone they have not been effective in preventing the behaviours.

Why is it proposed that the treatment should be carried out?

31. The treatment is proposed to reduce QKS’s testosterone levels and by so doing, reduce his inappropriate sexualised behaviours.

32. KGP indicates in his application that the treatment would allow QKS to have greater access to the community because in the absence of the medication, he poses a risk of harm to others. As is indicated above, due to his behaviours, QKS poses a threat to children and vulnerable adults and is also at risk of criminal charges.

Are there any risks associated with the proposed treatment?

33. KGP said that the medication can cause a number of side effects including hepatic disturbance, osteoporosis and gynecomastia. However he said that in 30 years of practice he has not seen liver issues in people prescribed the medication for sexual dysfunction and that the reports of hepatic effect have been in relation to men treated with the medication for prostate cancer. He was also aware of reports of apparent increase in the incidence of meningiomas in patients who are treated with the medication over a long time. However he said that in the past where he has had patients with either a developmental disability or a mental illness who have been prescribed Androcur and who had meningiomas, neurologists have not recommended ceasing the Androcur. KGP indicated that if consent to the treatment was provided, QKS would undergo regular assessments of his liver function, thyroid, cortisol levels, bone density and testosterone as well as ultrasound assessments for gynecomastia. He said that he would be guided by an endocrinologist as to whether or not QKS should undergo brain scans for the possible development of a meningioma.

Is the proposed treatment the most appropriate treatment?

34. As noted above other treatments and procedures are in place to address QKS’s problem sexualised behaviours and co-morbidities including his anxiety and obsessive compulsive behaviour. However those treatments alone have not resulted in the amelioration of the condition.

35. In our view taking into account the circumstances including the risk to QKS and others and the alternative strategies used as well as the strategies described by KGP to monitor side effects and effectiveness of the treatment, it is currently the most appropriate treatment.

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

36. As noted above, it was the view of the applicant and others that the cyproterone will result in a reduction of QKS’s behaviours of concern.

37. KGP said that if consent was provided, he would commence QKS on a relatively low dose of the medication and would build up to the requested dosage of 150mg twice a day over a two to three-month period. If the medication was effective, he would expect to see a reduction in the frequency of QKS’s problem behaviours over a six-month period. If this did not occur it might be concluded that the benefits of the treatment did not outweigh its risks.

38. LZS said that whilst she is not fully confident about the treatment, she believes that it should be tried because no other treatments or strategies have resulted in a reduction of the problem sexual behaviours.

39. QKS’s guardian, Mr Z was also of the view that the treatment should be tried because other treatments and strategies had not been effective.

40. Ms Seares was of the view that as other strategies had failed the treatment should be provided to QKS and that to do so was in his best interests because, if successful, it would reduce his risk of contact with criminal justice system and would provide for his increased access to the community. She noted that the treatment would not be used in isolation from other strategies and would be administered in the context of a close and supportive family. She was also of the view that KGP had appropriate expertise in the proposed treatment.

41. We were satisfied on the evidence provided that:

1. A number of treatments and strategies have been used to manage QKS’s behaviours and the issues that are caused by the behaviours.

2. QKS’s access to the community is currently strictly controlled due to his behaviours and the controls are a source of frustration to him.

3. If QKS’s behaviours were to continue he would be at serious risk of involvement in the criminal justice system.

4. KGP is an experienced practitioner who is aware of the possible advantages and disadvantages of the treatment including possible side effects and has indicated that he would seek appropriate assessments of the possible side effects and would conduct a review of the efficacy of the treatment to establish if its benefits outweigh the risks.

5. Having reached the conclusions noted above we were satisfied that the proposed treatment as described by KGP, with the assessments and monitoring and evaluation as outlined, will promote QKS’s wellbeing whilst maintaining his health.

The Tribunal’s conclusion

42. We consented to the application for the following reasons:

1. We are satisfied that other strategies have been attempted and have not been successful.

2. The proposed treatment is the most appropriate way of treating the behaviour in the manner proposed that includes ongoing use of other strategies and proper evaluation of the outcomes.

3. KGP has proposed appropriate monitoring of any side effects resulting from the medication.

4. The treatment is likely to promote QKS’s health and wellbeing and is in his best interests.

5. We are not aware of any relevant National Health and Medical Research Council guidelines and are satisfied that with his extensive experience in the use of this medication, KGP is in a position to conform with any requirements related to its use.

43. Whilst we were not satisfied that QKS understood the matters being discussed during the hearing we noted that he generally opposed any treatment or strategy being discussed. We were of the view that his generalised opposition might be taken to be objections to the treatment. As we were satisfied that any such objection was made in the absence of understanding of the nature or effect of the treatment, we were satisfied that we should stipulate that our consent is effective even if QKS objects to the treatment.

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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