Re GMH
[2003] QMHC 8
•19 December 2003
MENTAL HEALTH COURT
CITATION: | Re GMH [2003] QMHC 008 |
PARTIES: | APPEAL BY GMH AGAINST DECISION OF MENTAL HEALTH REVIEW TRIBUNAL |
PROCEEDING NO: | 172 of 2002 |
DELIVERED ON: | 19 December 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 1 July 2003 |
JUDGE: | Wilson J |
ASSISTING PSYCHIATRISTS: | Dr DA Grant Dr J F Wood |
FINDINGS AND ORDERS: | Appeal is dismissed |
CATCHWORDS: | MENTAL HEALTH – MENTAL HOSPITALS AND INSTITUTIONS – where appeal against Mental Health Review Tribunal decision to affirm involuntary treatment order – where appellant suffers from chronic schizoaffective disorder – where clear on evidence that appellant has mental illness which requires immediate treatment in form of medication – where disorder is an episodic illness – where appellant has history of poor compliance with medication – where appellant has been compliant with treatment for about two years – where appellant’s illness in remission – whether appellant lacks capacity to consent to treatment or has unreasonably refused proposed treatment for the illness – whether involuntary treatment order should be sustained Mental Health Act 2000 (Qld), s 14, schedule 2 In re C [1994] 1 WLR 290, considered Tameside & Glossop Acute Services Trust v C [1996] 1 Fam Law R 762, cited |
COUNSEL: | Appellant in person |
SOLICITORS: | Appellant in person |
ILSON JW: This is an appeal against a decision of the Mental Health Review Tribunal made on […] confirming an involuntary treatment order.
The appellant […] suffers from a chronic schizoaffective disorder. It is an episodic illness. Over the past ten years or so it has been characterised by periods of marked irritability, disruptive behaviour and the development of psychotic thinking. He has a history of poor compliance with medication, and when he is non-compliant, his condition deteriorates. Many years ago he was given electroconvulsive treatment, and more recently depot medication. At the time of the hearing he was on oral medication (olanzapine 2.5 mg nightly). He was living at home and attending outpatient appointments with his treating psychiatrist […]. He had been compliant with treatment for about two years, and the illness was in remission.
An involuntary treatment order may be made and sustained only if the treatment criteria in s 14 of the Mental Health Act 2000 are met. Those criteria are all of the following -
“(a)the person has a mental illness;
(b)the person’s illness requires immediate treatment;
(c)the proposed treatment is available at an authorised mental health service;
(d)because of the person’s illness –
(i)there is an imminent risk that the person may cause harm to himself or herself or someone else; or
(ii)the person is likely to suffer serious mental or physical deterioration;
(e)there is no less restrictive way of ensuring the person receives appropriate treatment for the illness;
(f)the person –
(i)lacks the capacity to consent to be treated for the illness; or
(ii)has unreasonably refused proposed treatment for the illness.”
It is clear on the evidence that the appellant has a mental illness which requires immediate treatment in the form of medication. In the absence of treatment, he would very likely have a relapse of psychosis requiring medical intervention and possibly admission to hospital. The proposed treatment is available at an authorised mental health service. Thus the first three criteria and paragraph (ii) of the fourth criterion are met.
…
…
Regrettably the Court did not have the benefit of full submissions on the meaning of “capacity to consent to be treated” in s 14 of the Mental Health Act 2000. The following definition appears in Schedule 2 to the Act:
“capacity”, for a person, means the person is capable of –
(a)understanding the nature and effect of decisions about the person’s assessment, treatment or choosing of an allied person; and
(b)freely and voluntarily making decisions about the person’s assessment, treatment or choosing of an allied person; and
(c)communicating the decisions in some way.”
In In re C [1994] 1 WLR 290 Thorpe J of the Family Division of the English High Court granted an injunction preventing the amputation of the plaintiff’s leg without his consent. The plaintiff was a 68 year old man who was suffering from chronic schizophrenia. He was suffering from an ulcerated foot which had become gangrenous, and a surgeon had advised treatment by amputation of the leg below the knee, failing which his chance of survival was small. The plaintiff refused his consent to amputation, but agreed to conservative treatment, as a result of which his condition improved. However, the hospital refused to give an undertaking that the leg would not be amputated at some time in the future. The patient’s mental illness was marked by grandiose and persecutory delusions as well as incongruity of affect, but there was no direct link between his refusal to consent to amputation and his delusions. His Lordship dealt with the issue of the capacity which enables an individual to refuse treatment in this way (at p. 295):
“I think that the question to be decided is whether it has been established that C’s capacity is so reduced by his chronic mental illness that he does not sufficiently understand the nature, purpose and effects of the proffered amputation.
I consider helpful Dr Eastman’s analysis of the decision-making process into three stages: first, comprehending and retaining treatment information; second, believing it and, third, weighing it in the balance to arrive at choice. … Applying that test to my findings on the evidence, I am completely satisfied that the presumption that C has the right of self-determination has not been displaced. Although his general capacity is impaired by schizophrenia, it has not been established that he does not sufficiently understand the nature, purpose and effects of the treatment he refuses. Indeed, I am satisfied that he has understood and retained the relevant treatment information, that in his own way he believes it, and that in the same fashion he has arrived at a clear choice.”
In In re MB [1997] 2 Fam Law R 426 at 437 the English Court of Appeal said that the question of competence should be approached bearing the following factors in mind, which were not intended to be determinative in every case -
“1. Every person is presumed to have the capacity to consent to or to refuse medical treatment unless and until that presumption is rebutted.
2. A competent woman who has the capacity to decide may, for religious reasons, other reasons, for rational or irrational reasons or for no reason at all, choose not to have medical intervention, even though the consequence may be the death or serious handicap of the child she bears, or her own death. In that event the courts do not have the jurisdiction to declare medical intervention lawful and the question of her own best interests objectively considered, does not arise.
3. Irrationality is here used to connote a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided it [sic] could have arrived at it. As Kennedy and Grubb (Medical Law, Second Edition 1994) point out, it might be otherwise if a decision is based on a misperception of reality (e.g. the blood is poisoned because it is red). Such a misperception will be more readily accepted to be a disorder of the mind. Although it might be thought that irrationality sits uneasily with competence to decide, panic, indecisiveness and irrationality in themselves do not as such amount to incompetence, but they may be symptoms or evidence of incompetence. The graver the consequences of the decision, the commensurately greater the level of competence is required to take the decision: Re T [1993] Fam 95, Sideaway [1985] AC 871 at p. 904 and Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, 169 and 186.
4. A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or to refuse treatment. That inability to make a decision will occur when: (a) the patient is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having or not having the treatment in question; (b) the patient is unable to use the information and weigh it in the balance as part of the process of arriving at the decision. If, as Thorpe J observed in Re C (supra), a compulsive disorder or phobia from which the patient suffers stifles belief in the information presented to her, then the decision may not be a true one. As Lord Cockburn CJ put it in Banks v Goodfellow (1870) LR 5 QB 549 at p. 569:- ‘One object may be so forced upon the attention of the invalid as to shut out all others that might require consideration.’
5. The ‘temporary factors’ mentioned by Lord Donaldson M.R. in Re T (supra.) (confusion, shock, fatigue, pain or drugs) may completely erode capacity but those concerned must be satisfied that such factors are operating to such a degree that the ability to decide is absent.
6. Another such influence may be panic induced by fear. Again careful scrutiny of the evidence is necessary because fear of an operation may be a rational reason for refusal to undergo it. Fear may be also, however, paralyse the will and thus destroy the capacity to make a decision.”
In R (N) v Dr M & ors [2003] 1 WLR 562 the claimant was a restricted patient detained in hospital. She was presented by a responsible medical officer with a treatment plan for a psychotic illness which included the administration of anti-psychotic medication by injection. She refused her consent to that treatment, and obtained an opinion from an independent consulting psychiatrist who advised her that she was very unlikely to be psychotic and therefore should not be given anti-psychotic medication, and that she had the capacity to make treatment decisions. The responsible medical officer obtained a second opinion from another psychiatrist who issued a certificate under the relevant mental health legislation stating that she was suffering from paranoid psychosis or severe personality disorder and required regular anti-psychotic treatment. He considered that she did not have the capacity to consent to treatment. The claimant unsuccessfully sought judicial review of the decisions of the responsible medical officer and the doctor who gave the second opinion and issued the certificate. The judge at first instance determined that she lacked capacity to consent to treatment, applying the three part test approved in In Re C. See [2002] EWHC 1911 at paras [60] – [72]. That part of his decision was not challenged on appeal.
See also the helpful discussions by Professor John Devereux of the University of Queensland Law School “Competency to Consent to Treatment: An Introduction”, in Freckleton IR & Petersen K, Controversies in Health Law, Federation Press, New South Wales, 1999, and “Problems with the Doctrine of Consent”, in Phillips Griffiths A, Philosophy, Psychology and Psychiatry (Royal Institute of Philosophy Supplement, No 37), Cambridge University Press, 1995, pp 191 - 195, and the decision of Ambrose J on “capacity” under the Powers of Attorney Act 1998 (Qld) in Re Bridges [2001] 1 Qd R 574.
As assessment of the appellant’s level of insight into his mental illness is critical to the determination whether the last two criteria in s 14 of the Mental Health Act 2000 are met. In answer to a question by the appellant as to the meaning of insight, Dr A [one of the examining psychiatrists] referred to three distinct levels of insight -
(i)the most basic level - acknowledgment that the has an illness and that the illness has caused him difficulties;
(ii)the next level - acknowledgment that treatment (continuing treatment) is necessary;
(iii)a deeper level - an understanding of the underlying mechanisms of his illness.
At the time of the hearing the appellant had been taking the oral medication which had been prescribed for him. In a sense he was consenting to the treatment, but both Dr A and Dr B [another examining psychiatrist] doubted that he really acknowledged having a mental illness. In oral evidence Dr A said -
“Well, I don’t think it can be said that he lacked - at the time I saw him - he lacked the capacity to consent in the sense that one ordinarily uses the term consent for treatment. He understands what the treatment is for, he understands the side effects. He understands what - well, he says he understands why he is taking the medication.
… And an understanding of what might happen if he doesn’t take the medication, although he’s equivocal on that. I don’t think he considered anything would happen because he doesn’t think at the back - at one level he doesn’t acknowledge he has a mental illness but certainly if you take his words he says he has consent.
… He’s, in fact, consenting to the treatment now, in a sense, because he’s taking it.
… It’s oral medication, he’s taking it.”
Dr B said in his report -
“In my opinion there is no less restrictive way of ensuring that he receives appropriate treatment. I believe that his insight is affected to the extent that while he can acknowledge to some extent that medication has been beneficial, he does not believe he has a mental illness. His continued writings about treatment, forcible treatment, psychiatrists and Queensland Health reflect an underlying overvalued idea that he does not have mental illness and therefore does not need treatment for his disorder. In my opinion his stated belief that he continued to take medication because it has been of some benefit or because he has promised to take it are not strongly held beliefs and it is likely that without an involuntary treatment order, he would at some stage stop taking medication and this would lead to a relapse with harmful consequences.”
And Dr A observed in oral evidence that in the absence of blood tests it would only be once he had a relapse that his failure to take his medication would become apparent.
His treating psychiatrist […], wrote […] –
“I believe that [the appellant’s] continued compliance (and therefore continued well-being) is a function of ongoing liability to detention. I therefore strongly recommend this be continued in the interests of his own well-being and (for reasons outlined in earlier reports) for the safety of others.”
The assisting psychiatrists both advised me that his consent to treatment was at best fragile and not based on a full understanding or acceptance of his illness. Dr Grant advised that because of the episodic nature of his illness his consent to treatment should be assessed in longitudinal terms and not just at a particular cross-sectional moment in time.
I am satisfied that even when the appellant’s mental illness is in remission he does not fully acknowledge that he has a mental illness or that continuing treatment for it is necessary. That is, even when his mental illness is in remission, he does not have full insight into it. When the illness is florid, he has no insight. Accordingly, I find that he lacks the capacity to consent to treatment. In the circumstances there is no way of ensuring he receives appropriate treatment less restrictive than an involuntary treatment order.
The decision of the Mental Health Review Tribunal confirming the involuntary treatment order was clearly correct. The appeal should be dismissed.
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