UFL

[2020] NSWCATGD 82

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

UFL [2020] NSWCATGD 82

Hearing dates:

09 December 2020

Date of orders:

09 December 2020

Decision date:

09 December 2020

Jurisdiction:

Guardianship Division

Before:

R H Booby, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
L Stewart, General Member (Community)

Decision:

The application for special medical treatment is dismissed after hearing.

Catchwords:

CONSENT TO MEDICAL TREATMENT – application for consent to special medical treatment – clause 14(b) of the Guardianship Regulation 2016 (NSW) – androgen reducing medication for the purpose of behavioural control – Cyproterone – subject person exhibits disinhibited sexualised behaviour – subject person with meningioma – risks and benefits of proposed treatment – evidence suggests behaviour not linked to testosterone level – inadequate trial of alternative strategies to address behaviours – substantial risk if proposed treatment is given – application dismissed

Legislation Cited:

Guardianship Act 1987 (NSW), ss 4, 33(2), Pt 5

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

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

002: Consent to Special Medical Treatment

UFL (the person)
JZN (applicant)
BYD (applicant)

Representation:

Nil

File Number(s):

NCAT 2020/00315030

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. UFL is 74 years old and lives at an aged care facility in regional NSW. His sister is Ms Z and on 6 October 2016 UFL appointed Ms Z, Mr Y and Ms X jointly and severally as his enduring guardians.

2. On 4 November 2020 the Tribunal received an application seeking consent to special medical treatment for UFL. The applicants were BYD the Residential Manager, and JZN the Care Manager who, on behalf of the aged care facility, sought consent for the administration of Cyproterone (Androcur) to UFL for the purposes of suppressing his libido to reduce inappropriate sexual behaviours. The application does not disclose the proposed dosage of Cyproterone, but during the hearing Dr W, who is UFL’s GP, said that he is prescribed 50mgs of Cyproterone twice a day.

The hearing

3. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]

4. UFL did not attend the hearing. BYD told us that UFL would be unable to understand the proceedings and would be unable to contribute to the hearing. In the application the applicants indicate that due to his intellectual disability UFL’s comments are often unrelated to the subject being discussed.

5. The Tribunal must ensure that it conducts its hearings in such a way as to extend procedural fairness to the parties. This includes a requirement that the parties must be given a reasonable opportunity to be heard, and to present their case.

6. The Tribunal is also required to follow principles set out in s 4 of the Guardianship Act 1987 (NSW). These principles include that paramount importance should be given to the welfare and interests of a person with disabilities.

7. We were satisfied that whilst it would be in the interests of UFL to participate in the hearing if he were able, his inability to effectively participate and the risk of distressing him due to the nature of the discussion was such that the Tribunal should proceed with the hearing in his absence.

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 UFL and the objects of Pt 5 of the Guardianship Act. As noted above, UFL did not attend the hearing. We were able to take into account the views of his enduring guardian, Ms Z.

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 Regulation 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 suppress UFL’s libido and thereby reducing his inappropriate sexual behaviours. 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 UFL 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. A Medical Assessment of UFL dated 5 May 2011 indicates that he scored 14/30 on the Montreal Cognitive Assessment (MoCA) on which the cut-off score for cognitive impairment is 26/30.

15. In a letter dated 14 August 2012 Dr V, a psychiatrist, indicates that UFL had bipolar disorder and autism spectrum disorder.

16. In a letter dated 28 November 2012, Dr V describes UFL as having bipolar disorder and an intellectual disability and “possibly autism”. He had scored 24/30 on the Mini Mental State Examination.

17. During the hearing Dr W said that in her view, UFL is not able to understand his medical conditions and is not able to consent to treatment.

18. As noted above, in the application the applicants indicated that UFL’s conversation is often unrelated to the subject under discussion.

19. We accepted the evidence of the health and medical practitioners and care staff as that of practitioners with appropriate qualifications and adequate knowledge of UFL to provide a view as to his mental health and cognitive circumstances and resultant ability to consent to medical treatment. We were satisfied that their evidence indicates that UFL lacks the capacity to understand the nature and effect of the proposed medication and therefore is unable to consent to the administration of Cyproterone.

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

20. We were advised that UFL had been displaying disinhibited sexualised behaviour including masturbating in public areas, inappropriate touching of staff and sexualised talk.

21. In the application the applicants state that the treatment is for the inappropriate sexual behaviours of concern.

What are the reasons for the proposed treatment?

22. In the application the applicants indicate that UFL has been administered the medication since 2009 when it was prescribed by Dr U, an Old Age Psychiatrist, and that its purpose is to suppress UFL’s libido and consequently his inappropriate sexualised behaviours.

What are the alternative options for treatment that are available?

23. A Transfer/Discharge Summary from a public hospital indicates that UFL had been admitted on a voluntary basis on 30 April 2010 due to a preoccupation with sexual themes. The Summary is signed on 3 May 2011 and indicates that over the period of the admission UFL had admitted to sexual thoughts but had not exhibited any inappropriate behaviour. It is noted that at that time he was prescribed Cyproterone at 25mg nightly as well as anti-psychotic and other medications.

24. In a letter dated 9 June 2011 Dr U notes that UFL raised an issue about his sexual urges and said that he was managing them with fairly regular masturbation.

25. In a letter dated 8 February 2012, Dr V refers to UFL’s “sexualised behaviour” and comments that it was “much improved” since his anti-psychotic medication had been increased and staff had changed their behaviours that might have been misinterpreted as sexualised. The need for consistency and reasonable limit setting with UFL had been reinforced.

26. Dr W said that the medical notes indicate that in 2018 there was an attempt to reduce the dosage of Cyproterone to 25mgs per day and that UFL’s behaviours of concern increased. Dr W was unaware of incidence of the behaviours in the past six months.

27. We referred Dr W the results of a testosterone assessment of UFL that indicates that, at 1.9nmo/L his testosterone count is very low. Dr W acknowledged that the current dosage of Cyproterone is high and that it could be appropriate to review the dose.

28. Ms T said that staff had removed all creams and lotions from UFL’s room because he was using them to masturbate. When asked why UFL could not be permitted to use appropriate lubricants to masturbate in the privacy of his room, Ms T indicated that his bedroom door is not closed because staff need to access his room frequently, that he often sits in his doorway, which is close to the television room, and that he also engages in sexualised talk. She said that the most recent recorded incident was three months prior to the hearing. She said that staff manage the behaviours of concern by moving away from UFL when he is engaging in the behaviours. Ms T was of the view that UFL’s behaviours of concern were less frequent with the medication and Dr W indicated that this was consistent with the information provided by the aged care staff.

29. Dr W said that she had sought the advice of a Psychiatry Registrar at the public hospital and was advised that Cyproterone is the only medication that is effective in reducing testosterone levels and thereby reducing the sexual drive in males. She was unaware of the level to which testosterone should be dropped, taking into account the relationship between lowered testosterone and reduced bone density and osteoporosis.

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

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

31. The applicants indicate that in the absence of the medication, UFL would engage in behaviours such as masturbating in front of others, touching female staff inappropriately and making lewd suggestions to female staff. They indicate that these behaviours increase in the presence of younger female staff.

32. During the hearing the Tribunal noted that UFL is said to have been receiving the medication since 2009 but the evidence of the care staff was to the effect that he continues to exhibit the behaviours. We questioned whether, given UFL’s very low testosterone levels, the behaviour was related to testosterone and therefore able to be controlled by testosterone-reducing medication, or whether the behaviour might be caused by other factors.

Are there any risks associated with the proposed treatment?

33. In the application the applicants indicate that the medication can cause weight gain, sweating, depressed mood, gastro-intestinal upsets, breast tenderness, hepatic disturbance, osteoporosis, shortness of breath, thrombotic phenomena and impaired spermatogenesis.

34. We asked Dr W to comment on an assessment that indicated that UFL had impaired liver function. Dr W said that UFL has blood tests every six months and the liver function results had not changed over time. He is not jaundiced and shows no other signs of liver dysfunction. Dr W agreed that the abnormal liver result could be a side effect of the Cyproterone.

35. Dr W said that UFL had not had bone density tests to check for osteoporosis. In relation to UFL’s weight, Dr W was of the view that whilst oedema could result from the medication it was likely that any weight gain experienced by UFL was due to a sedentary lifestyle.

36. We were advised that UFL was diagnosed with a meningioma in 2019. The Tribunal referred to warnings in quite recent medical publications to the effect that long-term use of Cyproterone was associated with increased risk of meningioma and its use should be ceased in people with a meningioma. Dr W was unaware of these warnings. She indicated that in 2019 UFL’s neurosurgeon had noted that UFL was prescribed a number of antipsychotic medications, but had not referred to the Cyproterone.

Is the proposed treatment the most appropriate treatment?

37. A Meditrax review of UFL’s medication that was conducted on 28 January 2020 notes that:

1. UFL’s health had declined since he was diagnosed with a meningioma in February 2019.

2. It is not clear that there has been a review of the Cyproterone to ensure that it was of ongoing benefit.

38. When questioned by the Tribunal on the appropriateness of the medication taking into account UFL’s circumstances, Dr W was of the view that there was a need for a neurologist’s review of the appropriateness of the Cyproterone taking into account UFL’s meningioma. She was also of the view that an assessment by an endocrinologist was warranted to provide advice as to safe testosterone levels for UFL and the effect of the medication on his liver.

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

39. As noted above, it was the view of the applicants that the Cyproterone results in a reduction of UFL’s behaviours of concern.

40. During the hearing Ms Z expressed concern that if UFL’s behaviours of concern escalated in the absence of the medication, he could be returned to the mental health facility of the public hospital. She said that he is very happy in his current accommodation which he describes as the best nursing home. However she was shocked and concerned upon learning of the possible serious side effects of the medication and was unable to decide if she supported the continuation of the treatment.

The Tribunal’s conclusion

41. We declined to consent to the application for the following reasons:

1. We are aware of medical opinion to the effect that prolonged use of Cyproterone has been linked to risk of a meningioma and also that its use should be discontinued in people with a meningioma. UFL has a meningioma and in our view it is unwise to continue with the medication pending a full neurological and endocrinologist review of the safety of the medication for him.

2. UFL has abnormal liver test results and has not been tested for osteoporosis. In our view, in the context of long-term use of Cyproterone these matters need to be addressed. We are of the view that continued administration of the medication pending addressing these matters would be warranted only if the medication were clearly the most appropriate way of addressing the behaviours of concern and if the need to control those behaviours by chemical means outweighed the possible disadvantages.

3. We are not satisfied that UFL’s behaviours of concern are the result of testosterone induced libido for the following reasons:

1. Whilst staff were of the view that UFL’s behaviours of concern had increased in 2018 when the dosage of Cyproterone was reduced, we note that the reduced dosage was the same as administered at the public hospital, where UFL did not engage in the behaviours over an extended period. Whilst we have no testosterone levels for UFL in 2018 we consider it reasonable to assume that his levels had reduced over the period from 2010 to 2018 and therefore that any testosterone induced behaviour would lessen over time.

2. UFL has been treated with testosterone reducing medication since 2009 and the evidence before the Tribunal is that despite his very low levels of testosterone his behaviours of concern have continued, albeit at a reduced frequency. Given his very low testosterone levels we are not satisfied that it is established that the behaviours are testosterone induced.

3. On the basis of the reasoning above, we are not satisfied that the medication is appropriate to address the behaviours of concern.

4. We are not satisfied that there has been an adequate trial of alternative strategies to address UFL’s behaviours of concern. In this respect:

1. UFL was admitted to the public hospital in 2010 due to sexualised behaviours, but he did not exhibit those behaviours during his admission.

2. In 2011 Dr U commented that UFL was dealing with his sexual thoughts by frequent masturbation.

3. In 2012 Dr V commented that UFL’s behaviours of concern were less frequent due to changes in his anti-psychotic medication and changed staff behaviour.

4. On Ms T’s evidence, UFL is not provided with an opportunity to continue his practice of frequent masturbation in the privacy of his own room with his door closed.

5. In our view there are a number of environmental and behavioural strategies related both to staff and UFL that could influence the occurrence of the behaviours and that could be modified to assist to reduce the frequency of the behaviours.

42. In our view, the matters set out above indicate that there is substantial risk for UFL from continuing this treatment and its necessity and efficacy for treating his behaviours of concern is questionable. For these reasons we declined to consent to the administration of the medication to UFL, and dismissed the application.

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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: 01 November 2021