TKQ

[2021] NSWCATGD 23

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

TKQ [2021] NSWCATGD 23

Hearing dates:

21 December 2021

Date of orders:

21 December 2021

Decision date:

21 December 2021

Jurisdiction:

Guardianship Division

Before:

J Moir, Senior Member (Legal)

Decision:

The Tribunal consents to the following medical treatment being provided to TKQ:

a course of three vaccinations against SARS-COVID-19 virus 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 six months from the date of this order.

Catchwords:

GUARDIANSHIP – COVID-19 vaccination – consent to medical treatment – guardian appointed early in pandemic and prior to development of COVID-19 vaccination with authority to consent to medical treatment – guardian objects to administration of vaccination for son – consideration of reasons for guardian’s objection and medical evidence in support of vaccination being administered – Tribunal consented to administration of vaccination – consideration of paramountcy of person’s welfare and interests under s 4 Guardianship Act and object of Part 5 to ensure that a person is not deprived of necessary medical treatment because of lack of capacity to consent.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 4, 32, 33, 33(2), 33A, 36(1)(a), 36(1)(b), 42(2), 44, 44(1)-(2), Pt 5

Guardianship Regulation 2016 (NSW), r 10(f), Pt 3

Cases Cited:

None cited.

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

007: Consent to Medical or Dental Treatment

TKQ (the person)
WBL (applicant)
DZQ (joined party)

Representation:

Nil.

File Number(s):

NCAT 2017/00198177

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

APPLICATION FOR CONSENT TO MEDICAL TREATMENT

What the Tribunal decided

1. The Tribunal consented to the treatment for TKQ in the terms set out in the order of 23 December 2021.

2. This decision was made after careful consideration of all of the evidence and the provisions of the Guardianship Act 1987 (NSW) (“the Act”). The Tribunal notes that vaccination against SARS-COVID-19 (COVID-19) is not mandatory for a person in TKQ’s circumstances.

Background

3. TKQ is a 62-year-old man who has been living in West Sydney, in supported accommodation operated by a disability service provider, since December 2020. Prior to this, TKQ was a long-term patient at a public hospital from 2016. He transitioned to the community under the Pathways to Community Living initiative. TKQ has been diagnosed with chronic treatment resistant schizophrenia (diagnosed aged 16) and is a client of a community mental health service.

4. TKQ has been subject to guardianship orders made by this Tribunal for many years and his mother, DZQ has consistently been appointed guardian. The guardianship order was most recently reviewed and renewed on 12 February 2020 and DZQ was reappointed for two years with authority to make decisions for TKQ regarding his accommodation, services, health care, medical and dental consent. His sister, Ms Z, was reappointed as the alternative guardian. TKQ has another sister, Ms Y, and a brother, Mr X.

5. On 7 December 2021 the Tribunal received an application seeking consent to medical treatment from TKQ’s treating psychiatrist, WBL. He asks the Tribunal to provide consent to the administration of two doses of Pfizer vaccine and a booster after six months for protection against adverse consequences of a COVID-19 infection. WBL states that he has consulted with infections disease specialists and there is a shared view that the proposed treatment is the most appropriate course of action for TKQ.

6. WBL indicates that he is seeking the Tribunal’s consent because DZQ has declined to provide consent as she objects to her son receiving this vaccination. WBL states that in his view DZQ’s objections are not based on “firm objective evidence”.

7. These Reasons for Decision arise from the hearing of this application.

The hearing

8. The hearing was held by telephone and the Tribunal spoke with TKQ, WBL, DZQ, Ms Z, Mr X, Ms W, Occupational Therapist/case manager at the community mental health service and Mr V, support worker at the disability service provider.

Legal framework

9. In making any decision under the Act, the Tribunal must observe principles in s 4 of the Act. These provide that TKQ’s welfare and interests should be given paramount consideration, his freedom of decision and action should be restricted as little as possible, his views should be taken into consideration, the importance of preserving his family relationships and cultural and linguistic environments should be recognised, and he should be protected from neglect, abuse and exploitation.

10. Part 5 of the Act provides for substitute consent to medical and dental treatment for people who are unable to provide consent on their own behalf.

11. Section 32 of the Act sets out the Objects of Pt 5 of that Act as follows:

32 Objects

…

(a)    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

(b)    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 well-being.

12. Section 33 of the Act provides that a person is taken to be unable to provide consent to medical treatment if they are incapable of understanding the general nature and effect of the proposed treatment, or incapable of indicating whether or not they consent to the treatment being carried out.

13. Section 36(1)(a) of the Act provides that substitute consent to minor or major medical treatment can be given by a “person responsible”. This term is relevantly defined in s 33A of the Act to include a person’s guardian (if the guardian has authority to provide consent to medical treatment).

14. Section 36(1)(b) of the Act provides that the Tribunal may consent to medical treatment “in any case”. Importantly, the Tribunal’s authority is not limited to situations where there is no “person responsible”.

15. Section 44(1) of the Act provides that, after conducting a hearing, the Tribunal may give consent to proposed treatment if it is “satisfied that it is appropriate for the treatment to be carried out”.

16. Section 44(2) of the Act provides that when considering whether or not to consent to minor or major treatment, the Tribunal must have regard to the views of TKQ (the subject of the application), WBL (the applicant), and DZQ and Ms Z (as persons responsible). The Tribunal must also consider the objects of Pt 5 of that Act, set out above.

17. Section 42(2) of the Act also requires the Tribunal to consider the following matters:

1. the grounds on which it is alleged that TKQ is a patient to whom this Part applies,

2. the particular condition 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 ‘minor’ or ‘major’ medical treatment?

18. Section 33 of the Act defines “medical treatment” as “...treatment (including any medical or surgical procedure, operation or examination and any prophylactic, palliative or rehabilitative care) normally carried out by or under the supervision of a medical practitioner”. As a vaccine is a “prophylactic” it falls within the definition of medical treatment. Medical treatment is classified as “minor”, “major” or “special”. Minor treatment is defined in s 33 of the Act as any treatment which is not “major treatment” or “special” treatment. “Major treatment” is defined in Pt 3 of the Guardianship Regulation 2016 (NSW) (“the Regulation”).

19. For most people a COVID-19 vaccination is classified as “minor treatment”. However depending on the circumstances, for some people it may be classified as “major” treatment, if it poses a “substantial risk” (defined as “more than a mere possibility”) of particular health consequences referred to in r 10(f) of the Regulations. These health consequences are death, brain damage, paralysis, permanent loss of function of any organ or limb, permanent and disfiguring scarring, exacerbation of the condition being treated, an unusually prolonged period of recovery, detrimental change of personality or a high level of pain or stress.

20. It may be that an individual has a “substantial risk” of developing one of these consequences if they have pre-existing conditions which make them vulnerable to risks from vaccination generally, or from the particular vaccine that is proposed. Ultimately the question of whether there is a “substantial risk” to an individual patient of one of these health consequences is a clinical decision for the medical practitioner who is giving or supervising the administration of the vaccine.

21. Regardless of whether the proposed treatment is minor or major treatment, s 44 of the Act provides that the Tribunal is authorised to provide consent if satisfied that it is appropriate for the treatment to be carried out. An appropriately authorised guardian would also be able to provide consent.

Is TKQ incapable of providing consent to the proposed treatment?

22. Section 33(2) of the 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.

23. WBL said that he had spoken with TKQ about the vaccination, but that TKQ appeared to be under the impression that he had already had it. WBL noted TKQ’s longstanding chronic schizophrenia and did not consider that he was capable of consenting on his own behalf to the proposed treatment because of the impact of his mental illness.

24. The Tribunal noted a “GP Brief letter” dated 30 December 2020 from WBL, in which he confirms TKQ’s diagnosis of longstanding chronic schizophrenia. He has had 18 inpatient admissions to the public hospital in the past, has been on community treatment orders in the community and has trialled a number of antipsychotic medications. His most recent involuntary hospital admission was four years between July 2016 and December 2020. His schizophrenia is currently treated with Clozapine and Amisulpiride.

25. The Tribunal also noted a “Progress note” dated 22 November 2021, recording a consultation between WBL and TKQ where WBL specifically spoke with him regarding the proposed vaccination. He concludes that although TKQ’s mental state remains stable, he continues to experience thought disorder, which was apparent in his response to WBL’s questions regarding the COVID-19 vaccination. In his view TKQ is not able to provide consent to the vaccination, although he does not appear to be opposed to it.

26. The Tribunal asked TKQ a few questions about the application. His presentation was broadly consistent with the medical evidence. His responses did not indicate that he had sufficient understanding to consent on his own behalf or that he was able to clearly express his wishes.

27. DZQ and Ms Z agreed that TKQ is not capable of providing consent on his own behalf as he does not understand.

28. The Tribunal notes that TKQ has been subject to a guardianship order for many years, and that a guardian has been authorised to make decisions on his behalf regarding medical (and dental) treatment. There was no evidence available for this hearing that TKQ has a level of understanding of the proposed treatment that would indicate that he is capable of providing consent on his own behalf.

Evidence in relation to relevant considerations

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

29. WBL states that he proposes TKQ have the Pfizer vaccine against COVID-19. He notes that TKQ is “particularly vulnerable to adverse consequences of a COVID infection due to his mental illness, as well as heavy levels of smoking”. The “Brief GP letter” referred to above records that TKQ has emphysema.

What is the proposed treatment?

30. WBL describes the proposed treatment as “a course of the Pfizer vaccine (consisting of two doses), [and] a booster dose after six months”. The treatment would be administered by TKQ’s GP, Dr U.

What are the reasons for the proposed course of treatment?

31. The treatment is proposed to provide protection to TKQ from serious illness or death should he contract COVID-19.

What are the risks of the proposed course of treatment?

32. WBL refers to a risk from the vaccine of “transient flu like syndrome”. He also refers to there being an association between the Pfizer vaccine and myocarditis, but notes that this is an “extremely small” risk.

33. “Risk” is always relative to the particular patient. The GP Brief letter states that TKQ has emphysema and was recently treated for renal cell carcinoma, with a partial nephrectomy performed in January 2020. CT scans since have not indicated any overt signs of metastasis. He has been treated in the past for H. Pylori. He was reviewed in April 2020 by Dr S, Cardiologist, and the echocardiogram (ECHO) showed “normal findings” in relation to his heart.

34. In preparing this application, WBL consulted separately with two infectious disease specialists at another public hospital, Prof T and Dr R, and provided the Tribunal with his notes of those discussions. He asked Dr R about TKQ’s “suitability” for the vaccine, based on his history of schizophrenia, clozapine treatment and renal malignancy (in remission). She advised him that these are not contraindications to TKQ receiving a COVID-19 vaccine.

35. Prof T recommended that TKQ receive the Pfizer vaccine, based on WBL’s account of TKQ’s medical state. WBL reports that Prof T noted that the “risk of serious adverse events relating to Pfizer are difficult to fully establish (ie. the risk of myocarditis) due to the rates approaching background prevalence levels”. The Tribunal understands this to mean that the risk of developing myocarditis as a result of the vaccine, is not significantly higher that the risk of developing it from some other cause unassociated with the vaccine.

What are the benefits to TKQ of the proposed course of treatment including the risk of the proposed treatment is not carried out?

36. WBL confirmed that the vaccination may not prevent TKQ from contracting the virus but that it would benefit him by providing him with protection from more serious infection or death. To some extent he is protected from infection by “herd immunity” but that this is not strong when there is a new variant, which is the current situation. Should TKQ contract COVID-19, which seems increasingly likely, WBL said that he and the other doctors he consulted considered that TKQ would be at particular risk of a very poor outcome, including death, if he was not vaccinated. WBL states that he and Prof T agreed that the risk of TKQ developing myocarditis is “extremely small” and that this risk is outweighed by the benefit of protecting him from “potentially fatal consequences” of a COVID-19 infection for TKQ. He reports that Dr R also agreed that it was in TKQ’s best interests to receive a COVID-19 vaccine and that he had no increased risk of an adverse reaction to the vaccine.

Are there alternative courses of treatment that are available and if so what is the general nature and effect of each of those courses of treatment and the nature and degree of the significant risks (if any) associated with each of those courses of treatment?

37. There was no evidence before the Tribunal regarding any alternative courses of treatment that are equivalent to a vaccine. There was no evidence that the treatment options available to TKQ should he contract COVID-19 would be any different if he was vaccinated or unvaccinated.

What are TKQ’s views

38. As noted above, TKQ was not able to give a clear view to the Tribunal, or to WBL. However he did not appear to be opposed to the vaccination.

What are WBL’s views?

39. WBL strongly considers that it is in TKQ’s best interests to receive the vaccine. He has made this application at some risk to his professional and therapeutic relationship with TKQ and DZQ, given that he had sought consent from her on a number of occasions and she had refused. He recognises that this had caused some tension in their relationship, but felt strongly that this was the best course to protect TKQ’s health.

40. As noted above, in his view, and the view of the specialists he consulted, TKQ is at no increased risk of an adverse reaction to the vaccination, but his mental illness and smoking history put him at a significantly increased risk of a very poor outcome, including death, if he does contract COVID-19. He noted that the current situation with a relatively new strain of COVID-19 (Omicron) leading to a very rapid spread of disease through the community increases the risk that TKQ will contract COVID-19 and reduces his protection from “herd immunity”. Weighing up the risk and benefit of being vaccinated against the risk and benefit of not being vaccinated, it is markedly in TKQ’s favour to be vaccinated.

41. WBL also noted that TKQ has done very well with his transition back into the community after such a lengthy hospital admission and has been able to do a lot more activities than he has for many years. The only way for him to be protected from the worst effects of the virus (if he is not vaccinated) is to significantly restrict his access to the community, which would be a great shame.

42. WBL confirmed that TKQ enjoys outings, including to cafes and shopping centres. He always wears a mask when out, apparently with no difficulty.

What are DZQ’s views?

43. DZQ and Ms Z were both strongly opposed to TKQ being vaccinated. They had not sought advice or opinions from other medical professionals and had no clinical or other evidence of this kind in support of their view. In summary the reasons for their objection are:

1. The vaccine is inherently risky and not enough is known about it. They are aware of people within their network of neighbours, relatives and acquaintances who report having experienced problems with the vaccine. Various media reporting has also contributed to their concern. They willingly advised the Tribunal that they had elected not to be vaccinated against COVID-19 partially on the basis of these concerns;

2. The vaccine is not “suited” to TKQ in particular because he takes very powerful medication (Clozapine) and the vaccination may not interact well with it. He has a history of kidney cancer and the vaccine may have some impact on this. He has a weak immune system generally and DZQ heard someone on the radio (she did not know who) say that people with weak immune systems should not have the vaccination;

3. They do not feel that anyone really knows enough about the vaccine. They are frightened that something bad will happen to TKQ if he has the vaccine and that they will “lose him”. DZQ acknowledged that WBL and Dr U have told her that it is safe for TKQ to have the vaccine, but she does not feel this is right. She has not sought any other medical opinion about this, and did not think that there was any other advice she could obtain which might change her view about this. She did not think that there was any reason to reconsider her decision despite the increasing COVID-19 cases arising from the Omicron variant.

44. The Tribunal asked a number of times how DZQ balanced her concern regarding an adverse response to the vaccine with the risk that TKQ would experience a very poor outcome should he contract COVID-19 infection, particularly given WBL’s stated concern that he was likely to be seriously affected because of his medical conditions, and because of the increasing case numbers in NSW at the present time. DZQ acknowledged that he may not live if he contracts COVID-19. However she said a number of times that she thought he’d have a “better chance” and would live longer if he did not have the vaccine. It was apparent that DZQ did not consider that the risk of him contracting COVID-19 and experiencing a serious illness was as likely as him experiencing an adverse reaction to a vaccine.

45. Ms Z said that there was no point in getting a vaccine as it does not prevent infection and that even vaccinated people are now needing to have booster shots. She did not address the issue identified by WBL that vaccines have been shown primarily to protect people against more serious illness and death, rather than to protect them from contracting the virus, other than to say that she has had a very bad reaction to the influenza vaccine and required admission to the intensive care unit.

46. Mr X told the Tribunal that his mother had decided that TKQ should not be vaccinated because of his low immune system and the drugs he is on. Her decision should be adhered to as she is the guardian and has been caring well for TKQ all of his life. Vaccination is not mandatory and she had made her choice. He made various assertions that WBL was not properly qualified to recommend vaccination as he is a “psychiatrist or psychologist or whatever” and that he had been “badgering” DZQ about this which he has no “right to do” as he should stick to psychological health not general health matters.

47. In response to these concerns, WBL noted: 1) that there is no contraindication against the proposed vaccination for people taking Clozapine; 2) that he is a psychiatrist and as such is medically qualified and able to consider matters regarding physical health as well as mental health; and 3) there is very clear evidence that, overall, people who are vaccinated have less serious illness and a lower rate of death than people who are unvaccinated.

Tribunal’s consideration

Should the Tribunal make a decision in relation to this application?

48. As noted above, DZQ is the legally appointed guardian for TKQ and as such, under the terms of the order made on 12 February 2020, is authorised to make decisions regarding his medical (and dental) treatment. The Tribunal would not usually have any role in consenting to treatment for a person who has an appropriately authorised guardian. Whilst the Tribunal is legally able to provide consent in these circumstances, as a matter of public policy, there must be sound reasons for the Tribunal to make a decision of this kind, rather than the guardian making the decision.

49. In TKQ’s situation, the Tribunal was satisfied that there are sound reasons for the Tribunal to make a decision about whether or not to consent to the proposed treatment. In coming to this view, the Tribunal gave paramount consideration to TKQ’s welfare and interests as well as the first object of Pt 5 of the Act, to ensure that he is not deprived of necessary medical treatment because he lacks the capacity to consent.

50. It was evident that DZQ loves her son deeply and is very concerned for his health and well-being. It was undisputed that WBL has spoken to her at some length on at least three occasions about the proposed treatment. He has sought specialist opinion regarding her concerns and has conveyed that opinion to her. Regardless of this medical advice, she has consistently declined to provide consent to the vaccine. WBL states that in his view, in relation to this issue, DZQ “does not have the capacity to refuse consent for [TKQ], based upon her inability to weigh the risks/benefits of [TKQ] being vaccinated”.

51. The issue of COVID-19 vaccinations has been widely discussed in various media, with public commentary by high profile people. It has become highly contentious in some circles and, based on the reporting in some parts of the media, it is understandable that some people have become very concerned about their safety and efficacy.

52. Medical procedures are rarely risk free, and decisions about medical treatment inevitably involve balancing the risk of the treatment, the risk of not having the treatment, and the benefit of having the treatment. For example, a low risk procedure which provides significant benefit and alleviates a risk of deteriorating health would usually be a situation where the balance is in favour of the procedure going ahead. Alternatively, a high risk procedure, which provides questionable benefit, addressing a condition which causes little impairment, is likely to be a situation where the balance is in favour of not proceeding with the treatment. A decision about whether or not to consent to treatment should have regard to all of these elements.

53. Having spoken at length to DZQ about her views, the Tribunal reached the same conclusion as WBL. The Tribunal noted that the focus of DZQ’s concerns all related to risks she believes the vaccine may pose to TKQ. This is despite the fact that there is no persuasive evidence that TKQ is at any higher risk of an adverse outcome from the vaccination than the general population. In contrast, DZQ gave almost no regard to the potential impact on TKQ if he did not have the vaccine, and contracted COVID-19. This was despite the consistent medical evidence that he is at significantly higher risk of serious consequences, including death, if he does contract the virus, which, given the rising case numbers, is increasingly likely. She has not sought, nor presented to the Tribunal any evidence in support of her concerns and she indicated that she would be unlikely to change her mind, regardless of changes in circumstances. Her decision appears to be based on her fear of the vaccine, at the expense of any other relevant consideration.

54. The Tribunal recognised that this is a somewhat unique situation, but was satisfied that in all the circumstances it was consistent with TKQ’s welfare and interests for the Tribunal to make a decision in relation to the application for consent to vaccination against COVID-19. This is because his guardian has demonstrated that she has not been able to consider this question in a sufficiently balanced way. This has led to TKQ potentially being deprived of necessary medical treatment because he is unable to consent on his own behalf and is dependent on others to provide consent.

Is the Tribunal satisfied that it is appropriate for the treatment to be carried out?

55. The Tribunal gave careful consideration to all of the evidence. The Tribunal recognises that there may be circumstances where it is not appropriate for the proposed treatment with COVID-19 vaccine to be carried out. However in TKQ’s situation, the Tribunal was satisfied that it is appropriate for him to have the course of vaccination proposed by WBL. In coming to this view, the Tribunal gave particular weight to the following:

1. There was reliable evidence presented that despite his health circumstance, TKQ is not at any increased risk of an adverse outcome from the proposed vaccination than the general population. There was no reliable evidence provided which conflicted with this. The treatment is properly classed as “minor” treatment;

2. There was persuasive evidence that DZQ’s particular health circumstances place him at an increased risk of a serious outcome, including a higher risk of death, than the general population, should he contract COVID-19;

3. It is within the public domain that, at the time of this application/orders, a new variant of COVID-19, Omicron, is causing a very rapid increase in case numbers in NSW. It is reported that this variant is significantly more contagious than previous variants, increasing the chance that TKQ will be exposed and contract the virus;

4. Although COVID-19 vaccines, including the Pfizer vaccine proposed by WBL, do not prevent a person contracting the virus, they have been demonstrated to provide a significant degree of protection against severe illness and death;

5. There is no alternative treatment which is equivalent to vaccination. The alternative approach is to try and prevent TKQ contracting the virus, which is likely to involve markedly more restriction in his day today life and access to activities in the community which he enjoys.

56. The Tribunal was satisfied that the proposed treatment was the most appropriate approach to promote and maintain TKQ’s health and well-being. The most likely outcome is that he will experience some minor side-effect from the vaccine such as a sore arm or some fatigue for a day or so on each occasion he receives a dose. However he will then have greater protection against contracting the virus, and more significantly, a much great chance that any infection is relatively mild. The relatively very small risk that he may experience a serious adverse reaction to the vaccination is outweighed by the clear benefit to him that the vaccine will protect him from very serious health outcomes in the increasingly likely event that he contracts the virus.

57. The Tribunal was satisfied that this decision is consistent with TKQ’s welfare and interests and that it supports his freedom of action and ability to live as normal a life in the community as possible. To the extent that it offers him protection from serious illness, it also protects him from neglect and abuse. Whilst his family will likely not agree with this decision, the Tribunal did not consider that it would damage his family relationships. There was no evidence before the Tribunal which suggested that receiving the vaccine was in conflict with any cultural (including religious) and linguistic environment with which he may identify.

58. The Tribunal therefore decided to consent to the proposed treatment being a course of vaccination against COVID-19, comprising two injections within a period of three to four weeks, and a booster shot after a number of months. The consent is valid for a period for six months, which should provide sufficient time for this course of treatment to be completed.

59. The Tribunal notes and accepts WBL’s proposal that the Pfizer vaccine is the most appropriate product at the present time. However given the duration of the period of consent, it is possible that a new and more appropriate product will become available and on this basis the consent does not specify the particular vaccine to be used.

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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: 02 February 2022