Rowlands v Guardianship Board No. Dcaat-99-45 Judgment No. D69

ROWLANDS v GUARDIANSHIP BOARD
[1999] SADC D69

REASONS FOR DECISION OF HIS HONOUR JUDGE KITCHEN, ASSESSORS CHYNOWETH AND PATTERSON

This is an appeal by the appellant pursuant to section 67(1) of the Guardianship and Administration Act against an order of the Guardianship Board made on 14 January 1999 that pursuant to section 13 of the Mental Health Act the appellant be detained in Glenside Hospital for the period up to and including 17 July 1999 and authorising that whilst detained he be given such treatment (excluding prescribed psychiatric treatment) as is authorised by the Director of the Glenside Hospital.
The court has a copy of the transcript of the proceedings before the Board on 14 January 1999 and the Board’s reasons for the orders made on that day.
The appellant’s grounds of appeal are:
The Guardianship Board erred in that it:
1...... Failed to have any or any adequate regard to Section 5 of the Guardianship & Administration Act 1993 in that it:
a)..... Failed to give any consideration to the wishes of the protected person, in particular, the wish of the protected person that he not be administered the drug Clozapine for which purpose the Treatment Order had been sought.
b) Failed to adopt the least restrictive course of action which was to treat the protected person in the community with medication to which he was amenable as there was already a Community Treatment Order in place to May 1999.
c)..... Made a Treatment Order and Continuing Detention Order for a period of 6 months when a lesser period of time would have been sufficient to determine the efficiency and suitability of the drug Clozapine, especially in view of the fact put that a trial period of Clozapine had already been put into place.
2...... Failed to take into account the protected person’s reasons for failing to take a prescribed dose of Clozapine on one occasion when he had consumed alcohol but was otherwise generally compliant.
3.Heard evidence that the purpose of the Treatment Order and Continuing Detention Order were to trial the drug Clozapine and manage personality issues but did not enquire as to the proposed personality management issues.
4...... Found that Section 13 of the Mental Health Act 1993 was satisfied when the protected person did not require immediate hospitalisation.
The proceedings before the Board were initiated by the application of Dr A McKenna for a continuing detention order, and a treatment order, in relation to the appellant who had been admitted to and detained in an approved treatment centre upon two successive orders made pursuant to section 12 of the Mental Health Act, the first on 9 December 1998 and the second on 2 January 1999 the latter of which was due to expire on 23 January 1999.
The appellant had been the subject of previous detention orders in early 1998, with a presumptive psychiatric diagnosis of paranoid schizophrenia, which culminated in the Board on 21 May 1998 making a continuing detention order pursuant to section 13 of the Mental Health Act for one month, for his treatment whilst detained and the Board also made a community treatment order pursuant to section 20 of the Mental Health Act for a period expiring on 21st May 1999.
The Board’s orders on 21 May 1998 were made, we infer, on a finding that the appellant was suffering from paranoid schizophrenia and that that was a mental illness within the meaning of the Mental Health Act. On 14 January 1999 the Board also found that the appellant still had the same mental illness, described as chronic paranoid schizophrenia, which was complicated by a borderline personality disorder. Ms Howell who appeared for the appellant at the hearing of the appeal did not challenge that finding.
Dr Chris White who appeared before the Board on 14 January 1999 told the Board that he had known the appellant for about three years “and many treatment options have been tried, all of which have been unsuccessful, resulting in repeated admissions to hospital. In the last twelve months there have been six admissions”. The date, and the duration, of each of those admissions is set out in the Board’s reasons. One of those admissions on 22nd September 1998, the Board was told, was a consequence of an incident when the appellant was discovered with a rope around his neck the other end of the rope being attached to a rafter. A subsequent admission on 28th October 1998, the Board was further told, occurred when the appellant cut off part of his ear.
To the Board Mr. Rowlands did not dispute these incidents and as to the latter of them said that he had been “hounded by the media in sort of like a joking, antagonistic sort of way, and more by innuendos, you pick up indirect innuendos and you know they are related to you, and sometimes I think my place is getting bugged or there is a bug on me and that’s my last resort by cutting my ear off because I thought there was an implant bug in my ear”.
These two incidents against the history of previous admissions to hospital brought the treating psychiatrist to decide to trial the drug Clozapine as the only remaining treatment option which Dr White described to the Board as follows:
“Chris White: Clozapine is a very recent drug and one that has a very critical window of opportunity in terms of management. Because Clozapine does have some side effects such as suppression of bone marrow, it’s mandatory for the first 18 weeks to have weekly blood tests and prescribed medication within 48 hours of an appropriate a blood result.
Tony Lawson: That’s to cope with agranular cytosis?
Chris White:.... Yes. So it’s very, usually it’s started with inpatient client because a the high degree of co-operation needed and if medication stops for more than 72 hours, we’ve got to go back right to the very beginning again, starting off on a very low dose over a number of weeks.”
As we understand, from the transcript, the appellant began with the medication Clozapine two or two and one half weeks before 4th December 1998 while he was still detained in hospital. On that day, Dr White told the Board, he spoke with the appellant with a view to releasing him from hospital on a trial basis, that he fully and carefully explained to the appellant the “very rigid requirements” with which a patient taking Clozapine had to comply and that if the appellant were agreeable to adhere to that regimen Dr White “would be prepared to give him a try” out of hospital. Dr White related:
“Chris White:.... He was very reluctant to accept it. I think he’s been worried enough to consider any kind of treatment.
Tony Lawson: Right.
ChrisWhite:. But we said to him he didn’t have option with the treatment order and being detained and that Anne McKenna is his treating doctor in the ward, we found it very hard to explain that we were doing this as other things not having really worked very well and it was really to keep him out of hospital.
Tony Lawson: And what response did Giles ultimately give to the team?
Chris White: Reluctant compliance.”
The appellant said to the Board that he remembered being told not to fail to take the medication for three days, or to drink alcohol. He was asked whether he agreed to take the medication daily and there was then this exchange between the Board and the appellant:
“Giles Rowlands:....... Until I had further talk with my lawyer about getting me out of the Treatment Order.
Tony Lawson:   Giles, that’s a very simple question, you answer a yes or no. Did you agree to take the medication on a daily basis? Yes or no.
Giles Rowlands:       Because I was forced to. I had no alternative.
Tony Lawson:           The answer is yes or no.
Giles Rowlands:       I had no alternative.
Tony Lawson:           The answer is you say is no, you didn’t agree.
Giles Rowlands:       No, I didn’t agree.
Tony Lawson:........... Right, OK. Why do you think the doctor let you out of hospital?
Giles Rowlands:       So they could manipulate orders the way they did.”
The detention order made on 28th October 1998 was revoked on 4th December 1998 and the appellant was released from hospital.
Ms Calderwood was the case worker assigned to assist the appellant which included transporting him to hospital for any necessary tests or treatment. On 7th December 1998 the appellant was scheduled to go to Cleland House for the administration of Haldol referred to as “the Depot”. On that day Ms Calderwood called at the appellant’s house to convey him to Cleland House for that purpose. She said the appellant refused to go because he was expecting a visitor, whereupon she went to Cleland House, discussed the matter with Dr White and it was decided that the administration of the Depot could wait until 9th December 1998, the day when the appellant was due to have a blood sample taken as part of the Clozapine medication regimen.
Ms Calderwood told the Board that on the 7th December 1998 the appellant told her he would give the Clozapine a week and “if I’m still having side effects I’m not taking it” to which she replied, to the effect, that he had been released from hospital because he had agreed to be “compliant” and the appellant responded “ ‘Well, I had to get out’ meaning the hospital, which you know was sort of in context with the rest of the conversation.”
Ms Calderwood also told the Board that on 9th December 1998 she spoke to the appellant over the telephone at about 9 am to arrange to take him to Cleland House. She said the appellant told her that he would not go and he did not want to take Clozapine. Ms Calderwood told the appellant she would call to collect him at 10.30 am. When she arrived there was no response to her knock at the door, or telephone calls to his home. She reported what had happened, and the appellant was taken into detention at the hospital that afternoon and the detention order bearing that date was made.
The appellant told the Board he remembered speaking with Ms Calderwood on 7th December 1998, that he remembered “bits and pieces” but could not put it in context. As to some of the conversations Ms Calderwood said that she had with him the appellant said he could not remember and he denied that he was told by Ms Calderwood on 7th December 1998 that he was to attend the hospital on 9th December 1998. Concerning Ms Calderwood’s evidence of the events on 9th December 1998 he said he could not remember whether he was not at home at 10.30 am or he was at home but had passed out because he was “fairly crook from medication”.
The Board, not surprisingly, preferred and accepted Ms Calderwood’s evidence over that of the appellant about what had transpired between her and him.
The appellant told the Board he had taken the medication Clozapine after his release from hospital except on one occasion when he “lapsed” because he had drunk alcohol. He related to the Board the side effects of Clozapine describing that on taking it (usually between 9.30 pm to 11 pm) he had to go straight to bed because it had a disorientating effect if he was up and walking around and it caused him to feel “like I had taken an overdose”. However, he also said that with the medication he is more tolerant, his relationships with his family and girlfriend are better and he doesn’t “get so stressed out”. He claimed that he was willing to be co-operative in taking Clozapine “even though I one hundred percent don’t like it”.
The Board clearly understood the potentially very serious life threatening consequences for some patients who take Clozapine - the risk of agranular cytosis, that is the loss of white corpuscles, to monitor and detect which it is essential a patient has weekly blood tests for eighteen weeks and monthly thereafter so that if such an adverse consequence occurs the medication can be stopped.
Ms Howell, who appeared for the appellant, submitted that the Board failed to have any or adequate regard to the wishes of the appellant that Clozapine not be administered to him, and thereby the Board failed to give effect to a precept in section 5 of the Guardianship and Administration Act. Section 5 of that Act provides (in part):
“5.Where a guardian appointed under this Act, an administrator, the public advocate, the Board or any court or other person, body or authority makes any decision or order in relation to a person or a person’s estate pursuant to this Act or pursuant to powers conferred by or under this Act -
(a) .. consideration (and this will be the paramount consideration) must be given to what would, in the opinion of the decision maker, be the wishes of the person in the matter if he or she were not mentally incapacitated, but only so far as there is reasonably ascertainable evidence upon which to base such an opinion.”
Section 4 of the Guardianship and Administration Act provides that:
“4..... Subject to any express provision of this Act or the provisions of any other Act, this Act is in addition to, and does not derogate from, any other Act.”
Ms Howell referred to passages in the transcript of the proceedings before the Board in which the appellant said he agreed to take Clozapine because he was forced to, that he had no alternative. Therefore, Ms Howell urged, the appellant would be unlikely to accept Clozapine as an ongoing medication and in that case he was not a suitable candidate upon whom Clozapine should be trialled.
The Mental Health Act provides in section 5:
“Objectives
5(1) The Minister, the Health Commission, the Board, directors of approved treatment centres and any Court or other body or person engaged in the administration of this Act must, in performing their functions under this Act seek -
(a)to ensure that patients receive the best possible treatment and care;
(b).... to minimise restrictions upon the liberty of patients and interference with their rights, dignity and self respect, so far as it is consistent with the proper protection and care of the patients themselves and with the protection of the public.”
Ms Schulz, who appeared for Glenside Hospital, while acknowledging similarities between sections 5 in each of the two Acts submitted that section 5 of the Mental Health Act does not require the Board to conduct an investigation of (or as we infer from her submission consider) the wishes of the person the object of an order sought under that Act.
We agree that the provisions of section 5 of the Guardianship and Administration Act did not regulate the procedures of the Board or the substance of the principles or objectives to which the Board must have regard in exercising its powers under the Mental Health Act. However that does not mean that the Board should not or cannot consider the wishes of the person against whom an order is sought; the objectives contained in section 5(a) and (b) of the Mental Health Act and in particular 5(b) are sufficiently broad to permit the Board to consider that persons wishes in an appropriate case in so far as there is evidence of what those wishes are, untainted by the mental illness it finds does exist.
Here the Board, in our view, appropriately investigated the appellant’s concerns about taking Clozapine and the side-effects of it as he perceived them, but against the background of the most recent history of the appellant in the evidence before it, particularly the incident concerning the rope and his self mutilation, it accepted that the appellant’s mental illness was amenable to treatment with Clozapine and if not treated there was serious risk to his health, his safety and his life. In our opinion the Board was correct in so concluding. There was no evidence before the Board of there being any less risky and as likely effective treatment than Clozapine for the appellant’s illness; indeed Clozapine was to be tried when all else had failed with the consequence to the appellant of the events of September and October 1998 and also there was evidence before the Board that Clozapine had brought about improvements in his condition.
Section 5(1)(b) of the Mental Health Act required the Board, and requires this court, to exercise its powers to minimise restriction upon the liberty of patients and interference with their rights. Ms Howell submitted that this objective exhorts that any order made must be the least restrictive upon the rights and freedoms of the patient as can be devised in the circumstances and urged that the Board’s order in the appellant’s case failed in that regard; she submitted that the requirement for medication could be less restrictively achieved as an incident of a community treatment order such as that which is in place until 21st May 1999.
The Board in its reasons wrote (page 6):
“Dr White advised the Board that the treating team is very concerned as to the health and safety of Mr. Rowlands, believing that his condition has deteriorated in recent months and that he is at serious risk to his health and his life, if not treated effectively. Dr White was supported by the evidence of Ms Penny Calderwood, who was Mr. Rowlands case manager during the period of his discharge on the 4 December 1998, and by the evidence of Ms Jenny Nicholson, his previous case manager”.
At page 6:
“Dr White advised the Board that given Mr. Rowlands lack of insight and lack of co-operation he did not believe there was a less restrictive alternative than the making of a continuing detention order and treatment order. In particular, he advised the Board that a community treatment order would be insufficient to enable Clozapine to be properly introduced and monitored. In part he relied upon the events between 4 December 1998 and 9 December 1998 to support this opinion”.
The Board found that the appellant had been “not co-operative with the prescribed treatment and will continue to resist treatment into the future unless compelled to receive such treatment. The Board does not accept Mr Rowlands version of events between the 4th - 9th December 1998. Mr Rowlands evidence was unsatisfactory in that his memory was unreliable and his story had contradictory elements which Mr Rowlands could not satisfactorily explain”, and concluded (page 7):
“In the Boards view all less restrictive options, including a community treatment order and voluntary treatment, have been tried and are unsustainable, particularly given Mr Rowlands active opposition to treatment and the critical management issues which the use of Clozapine raises. In the Board’s view the evidence establishes that the use of Clozapine is the best possible treatment and care and that this treatment cannot be introduced in a less restrictive manner than the making of a continuing detention order and treatment order....”
The evidence before the Board given by Ms Calderwood of the events between 4th and 9th December 1998, the evidence of the appellant concerning those events and his expressed reluctance, indeed his opposition, to taking medication, the Board’s assessment of the relative credibility of Ms Calderwood and the appellant together with the evidence of what transpired between the appellant and Dr White to result in the cancellation on 4th December 1998 of the detention order, was a sufficient basis in our view to justify the Board in rejecting a community treatment order as an appropriate alternative to a continuing detention order and a treatment order. Having reviewed the evidence upon which the Board relied, and the Board’s reasons, the alternative which Ms Howell argued for should not be accepted. The appellant in our view had made it clear that he agreed to comply with the regimen Clozapine demanded only to ensure his release from detention and within a few days he failed to take his medication on one occasion and, as the Board accepted having heard the relevant witnesses, said he refused to take that medication. In circumstances where the appellant, as it were, obtained his release upon his own undertaking concerning his future compliance, his words and actions made it inevitable that a community treatment order could not be seen as a sufficient vehicle for his future necessary treatment.

Concerning the period for which the detention and treatment order is to operate, six months, Ms Howell submitted that the appellant had been taking Clozapine for a period of some six to seven weeks at the time the application came before the Board on 14th January 1999 and the evidence or information before the Board did not support the period of six months stipulated by the Board.
The Board was clearly alive to the question of the period the order should operate for. There was this exchange (pages 21 - 22 of the transcript of the proceedings before the Board) between the president of the Board and Dr White after he told the Board the appellant had been “on” Clozapine for about six and a half to seven weeks.
“Tony Lawson:................... Alright. Now if I understand rightly the initial period during which there are weekly bloods for the granular psyhchosis, is for a period of about 18 weeks, so it’s got about 11 weeks to go. In terms of all of that, is that the period of time that the team want Giles to stay in hospital? A shorter period or a longer period, what’s the time-frame that you are asking for a Continuing Detention Order?
Chris White:     An Order for six months, but we were not anticipating Giles being in hospital in that time. As mentioned in her application, it can be very flexible and if Giles is compliant with our requirements, ....
Tony Lawson:.................... Let’s go back. What’s the logic of six months? That’s really what I’m asking. Why six months, why not eleven weeks?
Chris White:     I think it’s a reasonable trial for him to respond to medication.
Tony Lawson:.................... Yes, but we need to define ‘reasonable’.
Chris White:     It’s hard to tell but I think (inaudible) if someone’s been on Clozapine for up to six months, then it’s fairly clear it’s going to work in that time, or it’s not going to work. If it’s going to work, Giles will recognise that and he will then be very happy to take it.”
Dr White was plainly stating that after the appellant had taken Clozapine for “up to” six months it would be known whether or not that medication was working. That implies that taking into account the approximate seven weeks during which the appellant had taken Clozapine the order should have been for the period of some seventeen weeks. Even if there was some doubt about whether the appellant had taken Clozapine in the period 4th December to 9th December 1998 (the date the appellant was again detained) so that the treatment would have to begin again (and that is not clear) still the period of the order should have been significantly less than the six months ordered by the Board having regard to the evidence of Dr White which we have reproduced above.
We have set out earlier in these reasons the provisions of section 5(1) of the Mental Health Act. In our opinion the evidence before the Board does not support the Board’s decision that the detention order be for a period of six months commencing on the date of the Board’s decision. In our view the detention order should have been for six months less the period between 9th December 1998 and 14th January 1999, that is until 6th June 1999.
The appellant complains that the Board failed to take into account that his consumption of alcohol was the reason for his failure, on one occasion, to take the prescribed dose of Clozapine but that he was otherwise “generally compliant”. Having regard to the Board’s acceptance of Ms Calderwood’s evidence of the appellant’s statements about his intentions concerning Clozapine and the Board’s conclusion, upon the appellant’s own evidence, that he would not be compliant, a conclusion which in our view was clearly open to the Board and was correct, there is no substance in that ground of appeal. Further, having heard and considered Ms Howell’s submissions in support of grounds 3 and 4 of the appeal, our review of the evidence and the material before the Board brings us to the view that neither of those grounds is supported. The management of the personality issues the subject of the evidence before the Board was a peripheral and secondary matter to the overriding need to treat the appellant with Clozapine in the interests of his safety and health and in the circumstances those issues did not require any, or any further, investigation by the Board. Similarly the detention of the appellant in a hospital was a necessary incident of the Clozapine treatment, given the findings of the Board upon the question of the appellant’s unwillingness to voluntarily comply with the demands of that treatment in the absence of a continuing detention order.
For these reasons the order of the court is:
1. Appeal allowed.

2...... That the order of the Board made on 14th January 1999 be varied by deleting the phrase “for the period up to and including 17th July 1999” and substituting therefore “for the period up to and including 6th June 1999”.

.................. 3. That the order of the Board, as varied, be affirmed.

[1999] SADC 69

25 May 1999