QXB [2018] NSWCATGD 18

NCAT Guardianship|2018-04-06|Before: Health J

Background

Ms QXB is 26 years old and at the time of the hearing she was a patient at the Forensic Hospital having been found not guilty of a crime due to mental illness.
On 25 March 2015, the Tribunal appointed the Public Guardian to make decisions for Ms QXB about her accommodation and service.
On 20 June 2016, the order was reviewed and the Public Guardian was reappointed with the function of making decisions about Ms QXB's legal services for six months to ensure that she was represented at the upcoming criminal proceedings
On 22 March 2016, the order was renewed and the Public Guardian was reappointed to make decisions for Ms QXB about her legal services.
On 21 September 2017, the guardianship order was reviewed and allowed to lapse.
On 6 March 2018, the Tribunal received an application from the Justice Health and Forensic Mental Health Network seeking the appointment of a guardian for Ms QXB. The Tribunal received a second copy of that application on 7 March 2018.
On 13 March 2018, the Tribunal received an application from the Justice Health and Forensic Mental Health Network seeking consent for medical treatment for Ms QXB. The proposed treatment is the administration of Depo-Provera in order to interrupt Ms QXB's menstrual cycle. During the hearing it was clarified that the applicant sought consent for the administration of 150mgs of Depo-Provera by injection every three months.
The application was attached to a letter in which Ms JZG, Social Worker at the Justice Health & Forensic Mental Health Network states that the application for consent to medical treatment is to replace the guardianship application.
On 21 March 2018, the Tribunal received an application from Ms JZG in which she seeks to withdraw the guardianship application.

The hearing

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.]
Ms QXB did not participate in the hearing. Ms JZG said that she spoke with Ms QXB three times throughout the day and she had not wanted to attend the hearing. She had asked that the hearing be held on a different day. Ms QXB said it had been very difficult to engage Ms QXB in discussion about the application and she had responded to attempts to discuss the issues by saying "no thank you". At other times she said that she does not want the proposed treatment.
Dr Z, a Psychiatry Registrar at the Forensic Hospital said that Ms QXB has a very severe psychosis with treatment refractory delusions and disorganised behaviour and is often reluctant to engage with the clinical team. In her view it was difficult to predict if Ms QXB was any more likely to attend an adjourned hearing.
We were satisfied that Ms QXB had notice of the hearing and had been provided with a sufficient opportunity to attend and to put her views. Taking this into account as well as Dr Z's doubt about whether Ms QXB was any more likely to attend an adjourned hearing, we decided that we should proceed with the hearing in Ms QXB's absence, and taking into account the evidence of the applicant regarding Ms QXB's opinions about the treatment.

Does the Justice Health and Forensic Mental Health Network have standing to bring the application?

A person has standing to bring an application if she is: 1. The person who is the subject of the application 2. The Public Guardian or 3. Any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person.
In the matter of MZT [2018] NSWCATGD 8, the Tribunal considered whether the Justice Health and Forensic Mental Health Network (JHN) had standing to bring an application for guardianship. The Tribunal said the following: [13] The JHN is a statutory health corporation constituted under section 41 of the health Services Act 1997 (the HSA), is a body corporate (s.41(2) and is specialty network governed health corporation as specified in Schedule 2 of the HSA(s.41(3) ) . It is also a "public health organisation" pursuant to s.7(b) of the HSA. [14] Section 11 of the HSA provides that the principal reason for constituting statutory health corporations is to enable health services and certain health support services to be provided within the State other than on an area basis. [15] Pursuant to s. 45 of the HSA a statutory corporation may take proceedings in its corporate name and "may do and suffer all things that a body corporate may, by law, do and suffer that are necessary for or incidental to the purposes for which the corporation is constituted" [16] In the recent decision of NEJ [2017] NSWCATGD 1, the Tribunal held that a Local Health District under the HSA was a 'person' for the purposes of s.9(1)(d). Local Health Districts are constituted under s. 17 of the HSA and are body corporates. [17] We are satisfied that the JHN as a body corporate is a "person" within the meaning of s.9(d) of the Act. Does JHN Have a genuine concern for the welfare of MZT [18] A corporate body may have a "genuine concern" consistent with the decision in Minister for Disability Services Inc (CSD) [2010] NSWADTAP 44. According to this decision a number of factors can be considered to determine whether an organisation has a genuine concern, including the aims of the organisation and the types of activities it undertakes in pursuit of those aims. [19] In EBI [2017] NSWCATGD 6, the Tribunal found that the provision of direct relief of sickness, suffering and distress by operating facilities to serve the people of NSW are activities and objectives consistent with the meaning of a genuine concern for the welfare of a person as envisaged by the Act. [20] The Crown Solicitor drew our attention to the provisions of the Mental Health (Forensic Provisions) Act 1990. This provides the legislative framework for the forensic mental health system and specifies the care, treatment and control of forensic and correctional patients. [21] We were also referred to the Forensic Mental Health Services Policy Directive PD2012-050, published on 4 September 2012 (the Policy). The Policy applies to JHN which is noted "provides health care in a complex environment to people in adult correctional environment, to those in courts and police cells, to juvenile detainees and those within the forensic mental health system and in the community". [22] MZT is a forensic patient pursuant to s.39 and s. 42 of the Mental Health Forensic Provisions Act 1990 at the Forensic Hospital operated by JHN. Section 76B of the Mental Health Forensic Provisions Act 1990 provides that the principles in s.68 of the Mental Health Act 2007 (the principles for care and treatment) apply with respect to the administration of Part 5 of the Mental Health Forensic Provisions Act 1990 with respect to forensic patients … [23] The principles in s. 68 of the Mental Health Act include that: a. people with a mental illness or mental disorder should receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given, b. people with a mental illness or mental disorder should be provided with timely and high-quality treatment and care accordance with professionally accepted standards. [22] It was submitted by the Crown Solicitor that the statutory functions of JHN under the HSA and the Mental Health 2007 and the principles of care and treatment that apply by reason of the Mental Health Forensic Provisions Act 1990 set out above, are consistent with JHN being a person with a genuine concern in relation to the applications it makes concerning patients at the Forensic Hospital. [23] We accept those submissions and find that the purposes of the applications made by JHN indicate that JHN has standing under s. 9(1)(d) of the Guardianship Act 1987 to make the applications for the appointment of a guardian and financial manager for MZT.
In their application seeking a guardianship order, the JHN indicates that the purpose of the application is to allow for consent to a medical procedure that will modify Ms QXB's menstrual cycle because her inability to handle her menstruation results in risks to her dignity as well as verbal abuse and conflict with other patients, thereby exposing her to harm.
We are satisfied that the JHN is making the application out of a genuine concern for the welfare of Ms QXB and therefore that JHN has standing to make the guardianship application.

What did the Tribunal have to decide?

The questions which had to be decided by the Tribunal were: 1. Is Ms QXB someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions? 2. Should the Tribunal make a guardianship order and if so, what order should be made? 3. Who should be the guardian? 4. How long should the order last?

Withdrawal of the application

We did not consider the matters set out above in detail because we consented to the withdrawal of, and dismissed, the application for guardianship for the following reasons: 1. During the hearing, Ms JZG indicated that it was expected that Ms QXB would remain detained in the forensic hospital for an extended period and that whilst she was detained it was unlikely that she would need a substitute decision maker regarding lifestyle matters other than decisions about medical treatment where consent was needed and she was unable to provide consent. A separate application had been made seeking consent to medical treatment for Ms QXB. 2. We were satisfied that under the circumstances described in the preceding paragraph, the withdrawal of the application would not adversely affect the welfare or best interests of Ms QXB and on that basis consented to the withdrawal of, and dismissed, the application.

Does the JHN have standing to bring the application?

Section 44 of the Guardianship Act 1987 (NSW) ("the Act") provides that the Tribunal can consent to carrying out medical treatment on a person who is unable to provide consent. However, s 44(3) of that Act states that: Nothing in this section requires the Tribunal to consider an application relating to a patient if it is not satisfied that the applicant has a sufficient interest in the health and well-being of the patient.
As a preliminary question the Tribunal considered whether JHN has a sufficient interest in the health and wellbeing of Ms QXB to bring the application.
The words "sufficient interest" are not defined in the Act.
Some guidance regarding the meaning to be attributed to that term can be found in judgments where similar terms have considered. 1. In the matter of Onus v Alcoa Of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27, Stephen J comments on the meaning of the term "special interest" in the context of a matter related to standing of applicants under legislation for protection of archaeological and aboriginal relics and states: Thirdly, the distinction between this case and the A.C.F. Case is not to be found in any ready rule of thumb, capable of mechanical application; the criterion of "special interest" supplies no such rule. As the law now stands it seems rather to involve in each case a curial assessment of the importance of the concern which a plaintiff has with particular subject matter and of the closeness of that plaintiff's relationship to that subject matter. 1. In the matter of Minister for Conservation McCully v Whangamata Marina Society Inc and Anor [2006] NZCA 209 (11 August 2006), the Court of Appeal of New Zealand considered the meaning of 'genuine or proper interest' under r 66(9) of the High Court Rules 2016 (NZ) where a member of Parliament sought access to a court file. Hammond J considered earlier matters involving the meaning of similar terms and in doing so said the following: [30] In Currie v YMCA of Hamilton Inc (1989) 2 PRNZ 343 (HC) the Waikato Times newspaper applied to read and publish extracts from the report of a provisional liquidator of the YMCA, filed in winding up proceedings. Anderson J considered that the words "genuine and proper" (which are not defined in the rules) must have their ordinary meaning, of "authentic or bona fide". The requisite interest has connotations of "appropriateness, relevant appropriateness in the circumstances" (at 346). The Judge considered that the Waikato Times had an interest in the welfare and future of the YMCA, its creditors, and other persons involved in the difficulties the YMCA faced. It was not merely a "casual, or prurient, or officious" inquiry (at 346). The YMCA was a community amenity, and was a charitable organisation … [31] In Re Fourth Estate Periodicals Ltd (1989) 3 PRNZ 189 (HC) Williamson J considered that a "genuine interest means a real, true and solidly based interest whereas proper interest involves an interest which is lawful, respectable, and worthy.
The judgment of Hammond J has been cited in a number of matters considered by the State Administrative Tribunal of Western Australia in respect of s 109(1)(b) of the Guardianship and Administration Act 1990 (WA) under which a person who has, in the opinion of the State Administrative Tribunal, a proper interest in the matter may apply to the Tribunal for an order regarding an enduring power of attorney.
As indicated in the section of these Reasons dealing with Guardianship, in deciding that the JHN had standing to bring an application for guardianship, the Tribunal was satisfied of the following matters: 1. JHN is a statutory health corporation constituted under the Health Services Act 1997 (NSW) (HAS) and is a body corporate, a speciality network governed health corporation and a public health organisation. 2. Section 11 of the HSA provides that the principal reason for constituting a statutory health corporation is to enable health services and health support services to be provided within the State other than on an area basis. 3. The Mental Health (Forensic Provisions) Act 1990 (NSW) specifies matters related to the care, treatment, and control of forensic patients and the Policy Directive PD2012-050 of the JHN speaks of the JHN providing health care to people including those within the forensic mental health system.
Part 5 of the Mental Health (Forensic Provisions) Act sets out matters related to the care and treatment of forensic patients. The objects of that part of the Act are set out in s 40 of that Act and include: 1. the provision of hospital care for people requiring involuntary treatment; 2. giving an opportunity for those persons to have access to appropriate care.
Section 68 of the Mental Health Act 2007 (NSW) also applies to people detained in the Forensic Hospital and sets out general principles with respect to the treatment of all people with a mental illness or mental disorder.
Taking into account the legislative framework under which the JHN operates we are of the view that JHN is an applicant who could show an interest in the matter that arises out of the relationship with a patient and a concern for his or her welfare and that is authentic or bona fide, real, true, and solidly based and is not prurient or officious. We are satisfied that such an interest would be a "sufficient interest" on which to base an application.
In the application in respect of Ms QXB, the applicant indicates that Ms QXB is unable to recognise or cope with her menstrual period with resultant issues of hygiene, verbal abuse from other patients, and threats to her dignity and safety. The treatment would prevent her menstruating.
We are satisfied that in making the application for Ms QXB, for whose care and treatment it is responsible, the applicant is acting out of concern for Ms QXB's welfare and that the application is bona-fide. We are therefore satisfied that the applicant has standing to make the application.

What did the Tribunal have to consider?

If, after conducting a hearing into an application for consent to the carrying out of medical or dental treatment on a patient to whom this Part applies, the Tribunal is satisfied that it is appropriate for the treatment to be carried out, it may consent to the carrying out of the treatment.
In considering such an application, the Tribunal must have regard to: 1. the views (if any) of: 1. the patient; 2. the person who is proposing that medical or dental treatment be carried out on the patient; 3. any persons responsible for the patient; and 1. the matters referred to in s 42(2) of the Act; and 2. the objects of this Part.
Section 42(2) the Act requires that the applicant provide the following details for consideration by the Tribunal: 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.
The objects of Pt 5 of the Act are set out in s 32 of that Act and are: 1. 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 2. 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.
In the written application and in additional oral testimony, the applicant provided information to the following effect: 1. Ms QXB is not able to make her own medical decisions because she has treatment resistant schizophrenia as a result if which she is not able to understand the need to manage her menstrual cycle or the nature or effect of the proposed treatment. She has a number of symptoms of her illness including its negative symptoms that include poor self-care, amotivation, and disorganisation. 2. In addition to being unable to manage her menstrual period, Ms QXB resists the attempts of nursing staff to provide assistance. 3. Ms QXB's delusional thoughts include that she sometimes believes that she is pregnant and therefore her menstrual bleeding is distressing for her. 4. Ms QXB has said that she does not have an issue with her menstruation and therefore does not need assistance to manage it; she does not want to have Depo-Provera and does not wish to discuss it further. 5. The proposed administration of Depo-Provera would be effective in interrupting Ms QXB's menstrual cycle for three-months. Ongoing consent is sought for repeated administration for 12 months. 6. The treatment would benefit Ms QXB because it would result in improved hygiene and reduced conflict in the ward resulting in reduced risk of harm to Ms QXB. Dr Z said that an additional advantage of the medication could be that by stabilising Ms QXB's hormones, the medication could assist to manage Ms QXB's mental health. 7. In the absence of the proposed treatment Ms QXB would experience risks to her dignity, verbal abuse and conflict from others with resultant risk of harm. 8. There are no significant side effects or risks from the use of the medication. 9. There are no alternative treatments for Ms QXB's condition. 10. There is no 'person responsible' who could provide substitute consent to the medication.
During the hearing the Tribunal questioned the applicant about the possibility of alternative treatments such as use of the contraceptive pill or a Mirena device.
In respect of the possible alternative treatments Dr Z and Ms JZG gave evidence to the following effect: 1. Behavioural strategies to address the issues have been unsuccessful. 2. Use of oral hormones would be problematic because Ms QXB sometimes objects to taking her tablets, and she would resist taking an oral contraceptive because of the delusional belief she sometimes has, that she is pregnant. If she were to miss her oral contraceptive she could have break-through bleeding that would result in similar problems to her usual menstrual bleeding that tends to be regular and is mapped by staff on a menstrual chart. 3. Some off-label uses of antipsychotic medications also reduce the incidence of menstrual bleeding, but their use is not recommended in preference to Depo-Provera. 4. The insertion of a Mirena device would be more intrusive than the use of the Depo-Provera.
The Tribunal also sought comments from the applicants regarding precautions listed in the Product Information for Depo-Provera in MIMS relating to the use of the medication. These include the following: Bleeding irregularities. Most women receiving Depo-Provera for contraception experienced disruption of menstrual bleeding patterns. Altered bleeding patterns including irregular or unpredictable bleeding or spotting, or rarely, heavy or continuous bleeding. If abnormal bleeding persists or is severe, appropriate investigations should be instituted to rule out the possibility of organic pathology and appropriate treatment should be instituted when necessary. As women continued to use Depo-Provera, fewer experienced intermenstrual bleeding and more experienced amenorrhoea. By month 12, amenorrhoea was reported by 57% of women, and by month 24, amenorrhoea was reported by 68% of women using Depo-Provera. …. Bone mineral density changes. Contraception and endometriosis. Use of Depo-Provera reduces serum estrogen levels and is associated with a statistically significant loss of BMD as bone metabolism accommodates to a lower estrogen level. This loss of BMD is of particular concern during adolescence and early adulthood, a critical period of bone accretion. … Depo-Provera should only be used as a long-term (e.g. longer than 2 years) contraceptive method or treatment for endometriosis if other contraceptive methods or endometriotic treatments are inadequate. BMD should be evaluated when a female needs to continue to use Depo-Provera long-term.
In respect of the risk of unacceptable bleeding patterns, Dr Z agreed that it might be necessary to cease the medication if it resulted in Ms QXB having unpredictable and irregular bleeding, but that this was most likely during a "teething period" and the issue was less likely once Ms QXB's hormonal system settled.
In respect of other possible side effects: 1. Dr Z said that sometimes women complain of chest wall discomfort, hair growth, and changes in the distribution of body fat. 2. Dr Z agreed that some other side effect could include weight gain and depression but was of the view that those side effects were uncommon. In respect of the risk of depression she said that as the hospital is a psychiatric hospital there are regular mental health assessments, and that the anti-psychotic medication, clozapine, that Ms QXB receives, has a mood stabilising effect. 3. Dr Z said that Ms QXB's hormonal profile would be monitored to ensure it is within the normal range and that changes in Ms QXB's prolactin levels and thyroid function were unlikely. 4. In respect of the possible effects of the medication on Ms QXB's bone density, Dr Z: 1. agreed that long term use of the medication could affect bone density; 2. said that as Ms QXB is young, she is not at increased risk at this time. Vitamin D and calcium screening would be conducted as a baseline measure and if there was any cause for concern the frequency of screening would be increased; 3. said that frequency of screening would be determined by an endocrinologist, but in the opinion of Dr Z there would not be cause for a referral for some years because any problems were unlikely. There would not be any routine endocrinology reviews and to access an endocrinologist Ms QXB would need to be transferred to a general hospital.
Dr Z said in effect, that as a psychiatrist she does not usually prescribe this medication. No advice had been sought from a gynaecologist about the proposed treatment, but that advice would be sought before commencing the treatment.
Ms JZG said that Ms QXB is opposed to the treatment for a number of reasons, including her delusional beliefs about pregnancy and a general reluctance to participate with treatment carried out as mandated treatment as is the case in respect of mental health treatment for people detained in a mental health facility
The Tribunal questioned the viability of delivering medication by injection if Ms QXB were to object to the medication. In respect of this matter: 1. Ms JZG said that staff would attempt to gain Ms QXB's cooperation on a "good day" or at a "good time". 2. Dr Z commented that all patients have concerns about medication and that staff are trained to manage circumstances where patients resist medication. Usually patients can be talked around and take their medication.
The Tribunal questioned why, in the face of Ms QXB's likely objections, the administration of Depo-Provera injection was preferred over providing a hormonal pill with Ms QXB's daily medications. In response, the applicants expressed the view that it was less distressing for Ms QXB to receive a dose every three months by injection than daily through pills.
Having considered the evidence the Tribunal had the following concerns about the appropriateness of the treatment: 1. The Tribunal was not provided with any evidence from a gynaecologist regarding the proposed treatment and the applicant advised that as yet, an opinion had not been sought from a gynaecologist. It was our view that the opinion of a gynaecologist regarding the appropriateness of the treatment, taking into account all of the circumstances including possible side effects, was necessary before the Tribunal could consent to the treatment. 2. We were concerned that based on the information provided in the Product Information, the medication could fail to produce amenorrhea and therefore would not achieve its goal of causing a cessation in Ms QXB's menstrual bleeding, and conversely, that it could result in more distressing irregular and unpredictable bleeding. This is of concern taking into account the evidence that Ms QXB's menstrual bleeding places her at risk of harm in the ward. 3. We were of the view that there was some inconsistency in the evidence that any irregular or unpredictable bleeding caused as a side effect of the medication could be mapped and dealt with by staff, but this did not apply to the more predictable regular menstrual bleeding. 4. We were of the view that there was insufficient evidence regarding how to deal with the effects of any irregular bleeding resulting from the medication taking into account the following: 1. the product information to the effect that: 1. altered bleeding patterns can include irregular or unpredictable bleeding or spotting, or rarely, heavy or continuous bleeding; and 2. only 57% of women report amenorrhoea in 12 months of using the medication; 1. evidence to the effect that Ms QXB is sometimes distressed by vaginal bleeding because her delusional beliefs about pregnancy; 2. evidence to the effect that vaginal bleeding puts Ms QXB at risk of harm in the ward; 3. the inability to cease the medication within a three-month period over which it remains active. 1. We were of the view that there was some inconsistency in the evidence to the effect that a three-monthly injection of medication was more advantageous than delivering similar medication in a pill form when other pills were delivered, and the evidence to the effect that staff would be more likely to talk Ms QXB around to having the injection than to having a daily pill administered with other pills.
Taking into account the precautions stated in the Product Information regarding the effect of the medication on bone density, and in particular the comments that loss of bone density due to its use is of particular concern during early adulthood and bone mineral density should be evaluated when a female needs to continue to use Depo-Provera long-term, we were not satisfied that appropriate measures were in place to establish bone density baseline measures and to assess any effect of the medication on Ms QXB's bone density.
On the basis of our concerns noted above, we were of the view that the available evidence is insufficient for us to be satisfied that it is appropriate for the treatment to be carried out. Therefore we refused to consent to the treatment and dismissed the application.

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

Amendments 07 January 2019 - In the Catchwords section of the Cover sheet under GUARDIANSHIP: "- application withdrawn" is added

In the Catchwords section of the Cover sheet under CONSENT TO MEDICAL OR DENTAL TREATMENT: "consent granted/" and "-application withdrawn" are deleted DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 January 2019

Mental Health (Forensic Provisions) Act 1990(NSW)

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