SHC

[2016] NSWCATGD 72

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	SHC [2016] NSWCATGD 72
Hearing dates:	15 April 2016
Date of orders:	15 April 2016
Decision date:	15 April 2016
Jurisdiction:	Guardianship Division
Before:	J Moir, Senior Member (Legal) Dr B McPhee, Senior Member (Professional) K Laurence, General Member (Community)
Decision:	The Tribunal consents to the following special medical treatment being provided to Mr SHC: 1. Cyproterone acetate (Androcur) at a dose of 150mg daily. 2. 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 21 months from the date of this order.
Catchwords:	SPECIAL MEDICAL TREATMENT – Application for consent to special medical treatment – Androcur (cyproterone acetate) – 46-year-old man – mild intellectual disability and and paedophilic tendencies – most appropriate form of treatment to promote and maintain subject person’s health and well-being – consent given
Legislation Cited:	Guardianship Act 1987 (NSW), ss 33, 33(2), 42(2), 44(2); Pt 5 Guardianship Regulation 2010 (NSW), reg 10
Cases Cited:	Re MB (Medical Treatment) [1997] EWCA Civ 1361; (1997) 2 FCR (UK) 541
Category:	Principal judgment
Parties:	Mr SHC (subject person) Mr XYN (applicant)
Representation:	K Welland (Separate Representative for Mr SHC)
File Number(s):	54629
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

SPECIAL MEDICAL CONSENT

What the Tribunal Decided

1. The Tribunal consented to the special treatment for Mr SHC the terms set out in the order of 15 April 2016.

Background

2. Mr SHC is a 46-year-old man who lives in secure accommodation supervised by a disability service provider in southwest Sydney. This accommodation is provided in conjunction with the Community Justice Program. Mr SHC has been diagnosed with an intellectual disability and inappropriate sexual conduct with paedophilic attraction. He has spent time in custody for offences of this kind.

3. On 12 November 2013, the Tribunal gave consent for special medical treatment being provided to Mr SHC in the form of Cyproterone acetate (Androcur) up to 200mgs daily for a period of 18 months.

4. A guardianship order was made for Mr SHC in December 2014 and this was renewed in December 2015. The order made in December 2015 appointed the Public Guardian for a period of two years with authority to make decisions about his accommodation, services, and to advocate on his behalf. It was noted by the Tribunal during this proceedings that the consent for special medical treatment had expired in May 2015.

5. On 18 January 2016, the Tribunal received an application from Ms DBM, Psychologist, for consent to the continued administration of Cyproterone 50mg x 3 (total 150mg) daily, for the purpose of reducing Mr SHC’s sex drive.

6. The Tribunal appointed a separate representative for Mr SHC on 26 February 2016. Ms Kim Welland acted in this role.

Conduct of the hearing

7. A hearing was conducted in Sydney and was attended by Mr SHC, Ms Welland, Mr SZG, Mr SXM, and Mr XYN, all workers from the disability service provider. The Tribunal was advised that Ms DBM no longer works for the disability service provider and Mr XYN replaced her as the applicant in this matter. The Tribunal spoke by telephone to Dr Z, Mr SHC’s Psychiatrist.

8. At the end of these Reasons for Decision are lists of the parties to the application. [Appendix removed for publication.]

What did the Tribunal have to consider?

9. 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 best interests and

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

10. In considering the above questions, the Tribunal must have regard to the views of Mr SHC and Mr XYN and any person responsible (s 44(2) of the Guardianship Act 1987 (NSW)) and the objects of Part 5. The Tribunal was not made aware of any person responsible.

11. The Tribunal must also have regard to the following matters, as outlined in s 42(2):

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’?

12. Section 33 of the Guardianship Act defines “special treatment” to include treatment declared by the Regulations to be such. Regulation 10 of the Guardianship Regulation 2010 (NSW), provides that “any treatment that involves the use of androgen reducing medication for the purpose of behavioural control” is “special treatment” for which the Tribunal can provide consent, if the legal criteria are satisfied.

13. The proposed treatment is the administration of Cyproterone acetate 150mg to Mr SHC. Cyproterone acetate is a drug that blocks the effects of an androgen (the male hormone testosterone) in the body and, in turn, decreases the amount of testosterone produced in the body.

14. Prior to the hearing the Tribunal considered a Health Professional Report from Ms DBM dated 14 January 2016 as well as information provided in her application. This states that Mr SHC has a mild intellectual disability, a mood disorder, and paedophilia. Ms DBM explains that the purpose of the treatment is to reduce Mr SHC’s libido with a view to controlling the risk of his engaging in sexually offending behaviour. There is no suggestion that the proposed treatment is for any purpose other than behavioural control.

15. The Tribunal is reasonably satisfied that the proposed treatment is “special treatment” as it involves the administration of androgen reducing medication for the purpose of behavioural control.

Is Mr SHC incapable of providing consent to the proposed treatment?

16. 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.

17. “Understanding the general nature and effect”, in the Tribunal’s view, entails a degree of weighing up of information about the proposed medical treatment, as well as understanding and retaining the information provided. This is consistent with numerous cases on this point in England and Australia. In the English case of Re MB (Medical Treatment) [1997] EWCA CIV 1361; (1997) 2 FCR (UK) 541, Butler-Sloss LJ said:

“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 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;

the patient is unable to use the information and weight it in the balance as part of the process of arriving at the decision”.

18. The Tribunal has previously consented to the use of this medication for Mr SHC. In doing so the Tribunal has been satisfied that Mr SHC is not capable of consenting on his own behalf. In the present application, Ms DBM states that whilst Mr SHC has a basic understanding of the effect of the treatment, he does not understand the side effects or need for the treatment because of his intellectual disability. This is the case even though he usually provides consent to routine medical treatment. She states that he has told his psychiatrist, Dr Z that he would like to stay on the medication as he feels better and more relaxed.

19. Dr Z confirmed that he considers that although Mr SHC does seem to understand the general nature and effect of the treatment to some extent, he is not sure that this is to the degree necessary to be confident that he is able to provide consent to the treatment.

20. Ms Welland said that in her discussions with Mr SHC he was able to tell her that he wanted to stay on the treatment because he felt better because he did not have the same sexual urges. However, she was not sure that he was able to understand the risks and benefits of the treatment sufficiently well to be satisfied that he was able to provide consent to the treatment.

21. Mr SHC was able to tell the Tribunal that he felt better on the medication and would like to continue to take it for another 18 months. He was not able to articulate any understanding of the possible side effects or risks of taking the medication. He said he would just leave that to one of the workers in the house to decide for him

22. The Tribunal was satisfied from the evidence that Mr SHC whilst having some understanding of the nature and effects of the treatment, this is at the most basic level. The Tribunal was satisfied that Mr SHC is not capable of understanding and providing consent to this treatment on his own behalf.

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

23. The treatment is proposed to reduce Mr SHC’s libido to assist in the management of his inappropriate sexual urges. In the application, Ms DBM supports the use of the medication to assist Mr SHC control his sexual urges. At the hearing, Mr XYN indicated his support for the treatment continuing because the benefits to Mr SHC are obvious to those who work with him.

24. Ms Welland raised questions about whether Cyproterone acetate was the most appropriate treatment given there are recent scan results which showed that Mr SHC had developed osteoporosis, particularly in his hips. Dr Z noted that an earlier bone scan from 2013 showed Mr SHC had osteopenia and so the more recent bone scan shows a worsening of his bone mineral density which is likely caused by this medication. Dr Z told the Tribunal that this is a common side effect and seems to be the only significant side effect Mr SHC has experienced.

25. Dr Z explained that he has a number of patients who are on the same medication and that because of this he has a comprehensive monitoring program for the possible side effects, including a range of blood tests, hormone level tests, liver ultrasound, and bone density scans. He might consider referring Mr SHC to an endocrinologist for review given the evidence of osteoporosis, but he doubted there would be a change to the treatment. He did not think the endocrinologist would consider these results would warrant taking Mr SHC off the Cyproterone acetate given the obvious benefits he receives from that medication.

26. Dr Z said that Mr SHC currently takes calcium and could also take vitamin D to assist with the absorption of the calcium. There is other medication an endocrinologist might prescribe but this would be in addition to the Cyproterone acetate. Dr Z was confident that the current dose of Cyproterone acetate was the most appropriate treatment for Mr SHC and did not consider that any change would be in his interests. He did not consider that any alternative treatment, pharmacological, or psychological would be as effective in managing Mr SHC’s sexual urges.

27. Mr SHC told the Tribunal that he was happy to stay on the medication because it makes him feel better. He is able to go out on his own now and he does not feel like he is putting himself at risk of offending. The representatives from the disability service provider all agreed that Mr SHC has made a big improvement since he has been living there. There is a behaviour support plan in place (although no copy was provided) and he is now able to go out unsupervised for periods during the week. There is a register kept of all incidents with the residents and there have been no incidents with Mr SHC for some time.

28. Having heard the evidence, Ms Welland recommended to the Tribunal that the treatment with Cyproterone acetate 150mg continue on the basis that it was the most appropriate treatment. Although Mr SHC had developed osteoporosis likely as a result of this medication on balance it is still preferable for him to continue on the medication provided that the current level of monitoring for side effects continues.

29. In the period Mr SHC has been administered this medication, his subjective experience of sexual feelings he cannot control has reduced and the objective measure is that he has been able to access the community largely unsupervised without problems. It is manifestly in his best interests to achieve relative freedom of movement and autonomy which is possible because of the reduced libido resulting from this medication. The Tribunal was mindful of the evidence that he has developed osteoporosis which is a known side effect of this treatment. On balance, bearing in mind Dr Z’s evidence about the management and monitoring in place for this and other side effects, and noting the benefits to Mr SHC’s well-being whilst he is on this medication, the Tribunal was satisfied that the treatment is the only and the most appropriate treatment for promoting and maintaining Mr SHC’s health and well-being and that it is manifestly in his best interests.

30. The Tribunal therefore consents to the administration of Cyproterone acetate 150mg per day for Mr SHC.

31. This consent will continue for a period of 21 months. This will mean that this consent expires at the same time as the current guardianship order. If a further application for consent is made before the guardianship order is reviewed, these matters can be heard together, which will make this process less onerous and stressful for Mr SHC.

**********

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: 06 July 2018