NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: LWN [2018] NSWCATGD 26 Hearing dates: 24 September 2018 Date of orders: 24 September 2018 Decision date: 24 September 2018 Jurisdiction: Guardianship Division Before: R H Booby, Senior Member (Legal) Dr B McPhee, Senior Member (Professional) L Porter, General Member (Community) Decision: The application for the Tribunal to consent to medical treatment, namely administration of Cyproterone acetate is dismissed after hearing. Catchwords: GUARDIANSHIP – presumption of capacity CONSENT TO MEDICAL OR DENTAL TREATMENT – subject person capable of consenting to treatment – application dismissed Legislation Cited: Guardianship Act 1987 (NSW), Pt 5, ss 33(2), 34, 45 Guardianship Regulations 2016 (NSW), Cl 14(b) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: 006: Consent to Medical or Dental Treatment LWN (the person) Dr KZL (applicant) Representation: Nil File Number(s): NCAT 2014/00383513 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 Background 1. Mr LWN is 52 years old and lives in regional NSW in accommodation managed by a disability service provider. Mr LWN is supported by the Community Justice Program. 2. On 15 August 2016, the Tribunal made a guardianship order for 12 months appointing the Public Guardian to make decisions for Mr LWN about his accommodation, services, health care and medical and dental treatment. 3. On 7 August 2017, the Tribunal reviewed the order and made an order for two years appointing the Public Guardian to make decisions for Mr LWN about his accommodation, services, health care and medical and dental treatment. 4. On 25 July 2018, the Tribunal received an application seeking the Tribunal's consent to Mr LWN being treated with Cyproterone Acetate (Androcur). The applicant was Dr KZL who is a psychiatrist who is treating Mr LWN. 5. On 24 August 2018, the Tribunal convened to consider the application for medical treatment. On that occasion the Tribunal adjourned consideration of the application because Dr KZL was not available for the hearing. 6. The hearing conducted on 24 September 2018 was the hearing adjourned from 24 August 2018. The hearing 1. 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.] What did the Tribunal have to consider? 1. Androcur is an androgen reducing medication. Clause 14(b) of the Guardianship Regulations 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 1987 (NSW). 2. Part 5 of the Guardianship Act deals with consent to medical and dental treatment and includes s 45 of that Act that deals specifically with consent to special medical treatment. 3. However, s 34 of the Guardianship Act provides that Pt 5 of that Act applies to a patient who, amongst other matters, "is incapable of giving consent to the carrying out of medical or dental treatment". 4. Section 33(2) of the Guardianship Act provides that for the purposes of Pt 5 of that Act, a person is incapable of giving consent to the carrying out of 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 he or she consents or does not consent to the treatment being carried out. 1. A preliminary question in this matter was whether Mr LWN was able to consent to the proposed treatment. 2. In his application, Dr KZL indicates that Mr LWN has been receiving the medication since 2016. He also states his view that Mr LWN is able to consent to the treatment, and supports the need for it. Dr KZL indicates that the application to the Tribunal was made because Disability Services Australia had requested that it be made. 3. Dr KZL gave oral evidence consistent with the views expressed in the application. He said that in his view Mr LWN understood that the purpose of the medication is to reduce his sexual urges and that he also understood the possible side effects of the medication. 4. During the hearing Mr LWN said in effect: 1. The medication had reduced his libido and testosterone but had not fully eradicated his sexual urges; 2. He has blood tests to monitor the medication and he agreed with Dr KZL that he has bone density checks arranged through his GP to monitor possible side effects of the medication; 3. He must continue to accept the medication because otherwise the Child Protection Register would "get angry"; 4. He understands that he takes other medication to stay healthy and to protect against illnesses such as diabetes. 1. Dr KZL said that Mr LWN's GP is familiar with the need to ensure that Mr LWN has blood tests and bone density checks to monitor possible side effects whilst taking Androcur. He also confirmed that Mr LWN is given stern warnings by the Child Protection Register about the requirement that he continue to receive the Androcur. 2. Mr Z, Program Manager supporting Mr LWN, said that in his opinion, Mr LWN understands the medication including its possible side effects. However, an official visitor had visited the residence and had advised that as the Public Guardian had been appointed to make decisions about Mr LWN's medical treatment it was necessary to apply to the Tribunal for consent to the special medical treatment. 3. Ms Y, who is a Forensic Clinician with the Community Justice Program, agreed that Mr LWN is able to understand the nature of the medication and its possible side effects. She said that she had supported the application for consent by the Tribal because of the making of the guardianship order that appointed the Public Guardian to make decisions about Mr LWN's medical treatment. 4. Ms Helen Earlam, of the Office of the Public Guardian, said that previously the Public Guardian had consented to some medical treatment for Mr LWN. However, she said that she met Mr LWN recently and was impressed by his level of understanding about all his medication. 5. As noted above, on previous occasions the Tribunal has made guardianship orders for Mr LWN. In doing so the Tribunal has been satisfied that Mr LWN has a disability that prevents him making important life decisions. Having reached that conclusion the Tribunal has, on successive occasions appointed a guardian to make medical and dental decisions for him "when (he) is not capable of giving valid consent". 6. The language cited in the previous paragraph, that is, "when (he) is not capable of giving valid consent" specifically allows that a person subject to a guardianship order appointing a person to make medical or dental decisions, may, nevertheless, be capable of giving valid consent. Taking into account the language of the orders cited, it is our view that making a guardianship order that includes authority for another person to give consent to medical treatment for Mr LWN does not assume that he is necessarily unable to do so, nor prevent him from consenting where he is able to do so. 7. The Tribunal accepts and places weight on the evidence of Dr KZL, Mr Z, Ms Y and Ms Earlam as that of appropriately qualified practitioners with sufficient knowledge and experience and acquaintance with Mr LWN to proffer views about his ability to consent to the treatment. Taking their views into account as well as Mr LWN's evidence, we are satisfied that Mr LWN understands the general and more detailed nature and effect of the proposed treatment and is able to communicate his consent. Accordingly, we are of the view that he is not a person who is incapable of giving consent to the carrying out of the proposed treatment and therefore is not a person for whom the Tribunal could provide consent to the treatment under Pt 5 of the Guardianship Act. 8. Having decided that Mr LWN is not a person for whom the Tribunal could provide consent, we 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 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: 21 December 2018