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ACT CIVIL & ADMINISTRATIVE TRIBUNAL
IN THE MATTER OF E.R (Mental Health and Guardianship and Management of
Property) [2015] ACAT 73
AA 11/40
Catchwords: MENTAL HEALTH – GUARDIANSHIP AND
MANAGEMENT OF PROPERTY – capacity to consent to
psychiatric treatment from time to time – dual disability – Ruling
Tribunal – assessment of capacity – whether a person has
capacity to comprehend, retain and use and weigh information to
make a decision – sliding scale of capacity to consent – capacity
to be assessed in relation to the decision to be made – supported
decision making – whether a finding of impaired decision making
automatically precludes a person from consenting to psychiatric
treatment – human rights considerations
Legislation
cited – Current : ACT Civil and Administrative Tribunal Act 2008 s 77
Guardianship and Management of Property Act 1991 ss 5, 7,
7B
Human Rights Act 2004 ss 10, 12, 13, 18, 30, 40B
Mental Health (Treatment and Care) Act 1994 ss 26, 27, 28,
29, 33
Mental Health (Treatment and Care) Amendment Act 2014
Legislation
Cited – Not yet
in force: Guardianship and Management of Property Act ss 70A
Mental Health Act (Treatment and Care) Act ss 7, 8
Cases cited: ACT v JT [2009] 4 ACTR 68
Allatt & ACT Government Health Directorate [2012] ACAT 67
Gibbons v Wright (1954) 91 CLR 423
Gillick v West Norfolk and Wisbech Area Health Authority
[1985] 3 All ER 402
HL v United Kingdom (2005) 40 EHRR 32; [2004] 9 ECHR
191
Hunter and New England Area Health Service v A (by his Tutor
T) [2009] NSWSC 761
KK v STCC [2012] EWCOP 2136
MBC v GW and PW [2007] EWHC136 (Fam); [2007] 2 FLR
597
Momcilovic v The Queen [2011] HCA 34
Re Application for Bail by Islam (2010) FLR 158
Re C (Adult: Refusal of Treatment) (1994) 1 WLR 290
Re MB (An Adult: Medical Treatment) [1997] 2 FCR 541
Re T (Adult: refusal of treatment) [1993] Fam 95
Secretary of the Department of Health and Community Services
v JWB (Marion's Case) (1992) 175 CLR 218
Zinermon v Burch 494 US 113 (1990)
List of
Texts/Papers cited: Explanatory Statement, Mental Health (Treatment and Care)
Amendment Bill 1998 (ACT)
O’Neill, N & Peisah, C, Capacity and the Law (Sydney
University Press, 2012)
Patient Safety and Quality Unit, ACT Health, Consent to
Treatment: Procedure (CED 09-007), November 2011
Victorian Law Reform Commission: Guardianship: Final
Report:http://www.lawreform.vic.gov.au/sites/default/files/Guard
ianship_FinalReport_Full%20text.pdf
Tribunal: Professor P. Spender – Presidential Member
Mr C.G Chenoweth – Senior Member
Ms J. Lennard – Senior Member
Date of Orders: 29 October 2015
Date of Reasons for Decision: 29 October 2015
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 11/40
BETWEEN:
In the matter of:
ER
RULING TRIBUNAL: Professor P. Spender – Presidential Member
Mr C.G. Chenoweth – Senior Member
Ms J. Lennard – Senior Member
DATE: 29 October 2015
RULINGS
Question
On 18 October 2011 the Tribunal found that ER has impaired decision-making and
made an order appointing a guardian pursuant to sections 5 and 7 of the Guardianship
and Management of Property Act 1991.
Do the finding and order mean that ER cannot give lawful consent to psychiatric
treatment from time to time (‘the question’)?
Answer
No, the finding and order made on 18 October 2011 do not mean that ER cannot give
lawful consent to psychiatric treatment.
Sub-Questions
In determining the answer to the question, the Tribunal shall have regard inter alia to
the following sub-questions:
1. Does ER, as a matter of fact, have capacity from time to time to consent
to psychiatric treatment?
Answer: ER does not have capacity from time to time to consent to
psychiatric treatment.
2. How do sections 26, 28(d) and 33 of the Mental Health (Treatment and
Care) Act 1994 and section 30 of the Human Rights Act 2004 inform the
answer to the question?
Answer: These provisions do not disturb the finding referred to in the
answer to sub-question one.
………………..
Professor P. Spender
Presidential Member
For and on behalf of the Tribunal
TABLE OF CONTENTS
REASONS FOR DECISION ......................................................................................... 4
Background .................................................................................................................... 4
Request to Establish a Ruling Tribunal ......................................................................... 5
Conduct of the Proceedings ........................................................................................... 7
Evidence and Submissions ............................................................................................. 8
THE LEGAL FRAMEWORK – GENERALLY SPEAKING ...................................... 8
‘Lawful’ Consent...................................................................................................... 11
A sliding or ‘spectrum’ approach to capacity .......................................................... 11
Human Rights Principles .......................................................................................... 13
UN Convention on the Rights of People with Disability ......................................... 15
Conclusion on the Legal Framework ....................................................................... 16
WHAT THE TRIBUNAL NEEDS TO DECIDE IN THE PRESENT
PROCEEDINGS .......................................................................................................... 16
The Protection Imperative ........................................................................................ 19
Informal Procedures ................................................................................................. 20
The Administration of Treatment in a Controlled Environment and Acquiescence 21
ACT Health – Consent to Treatment – Procedure ................................................... 23
Fluctuating Capacity ................................................................................................ 25
PRIMARY QUESTION REGARDING THE LEGAL EFFECT OF THE
GUARDIANSHIP ORDER ......................................................................................... 26
SUB QUESTION 1 – ER’S CAPACITY TO CONSENT .......................................... 28
Capacity to Consent Must Be Assessed by Reference to the Decision to be Made .... 28
‘Psychiatric Treatment from Time to Time’ ................................................................ 28
Assessing the Evidence About ER’s Capacity I - The Hearing ............................... 29
Consideration of the Evidence on Capacity from the Hearing ................................. 31
Side Effects .............................................................................................................. 34
Assessing the Evidence About ER’s Capacity II - The Relapse in April 2014 ....... 34
Assessing the Evidence About ER’s Capacity III - ADACAS Trial of Supported
Decision-Making September 2014 ........................................................................... 38
CONCLUSION ON THE EVIDENCE OF CAPACITY ............................................ 39
THE FUTURE – AMENDMENTS TO THE MENTAL HEALTH ACT .................. 39
CONCLUSION ............................................................................................................ 40
SCHEDULE 1 – CURRENT LEGISLATION ............................................................ 41
SCHEDULE 2 – LIST OF THE PARTIES’ SUBMISSIONS AND OTHER
MATERIAL ................................................................................................................. 46
SCHEDULE 3 - ACT HEALTH - CONSENT TO TREATMENT - PROCEDURE
CED 09-007 ................................................................................................................. 47
SCHEDULE 4 –EXPERT EVIDENCE....................................................................... 48
Dr JenniferThompson ............................................................................................... 48
Dr John Kasinathan .................................................................................................. 50
Dr Peter Wurth ......................................................................................................... 53
SCHEDULE 5 - OTHER WITNESSES ...................................................................... 58
Mr Phillip Leahy ...................................................................................................... 58
Ms Tammy Bolton ................................................................................................... 58
SCHEDULE 6 – EVIDENCE REGARDING THE RELAPSE IN APRIL 2014 AND
ER’S MENTAL STATE MID-LATE 2014 ................................................................ 60
SCHEDULE 7 – EVIDENCE REGARDING ER’S PARTICIPATION IN THE
ADACAS SUPPORTED DECISION-MAKING PROJECT - SEPTEMBER 2014 .. 63
SCHEDULE 8 - LEGISLATIVE AMENDMENTS STILL TO COME INTO FORCE
...................................................................................................................................... 65
Amendments to the Guardianship Act by the Mental Health (Treatment and Care)
Amendment Act 2014 .................................................................................................. 66
REASONS FOR DECISION
1. In answering the question of law, the Tribunal has concluded that the finding
and order made on 18 October 2011 appointing the Public Advocate as a
guardian to make certain decisions on ER’s behalf because ER was found to
have impaired decision-making under the Guardianship and Management of
Property Act 1991 (the Guardianship Act) do not of themselves mean that ER
cannot give lawful consent to psychiatric treatment from time to time. However,
the Tribunal has also found, as a matter of fact, that ER does not have capacity
to consent to psychiatric treatment from time to time.
2. In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT
Civil and Administrative Tribunal generally, whereas ‘Tribunal’ or ‘Ruling
Tribunal’ refers to the currently constituted tribunal.
3. The legislation that is currently in force and relevant to this decision is set out in
Schedule 1.
Background
4. This matter came to the Ruling Tribunal as a consequence of a number of ‘dual
disability’ people who were coming before the tribunal where orders were
sought for the provision of psychiatric treatment, in particular psychiatric
treatment orders (PTO) under the Mental Health (Treatment and Care) Act 1994
(the Mental Health Act). ‘Dual disability’ people have an intellectual
impairment and a psychiatric illness. Many of these people receive care from
what was formerly known as ‘Dual Disability’ and is now referred to as the
Mental Health Service for People with Intellectual Disability (MHS-ID). Many
of these people live in a structured or supported accommodation. All were the
subject of a guardianship order.
5. A guardianship order is made under the Guardianship Act when someone is
found to have impaired decision-making ability. A guardian is appointed as a
substitute decision-maker for certain decisions. However, a guardian is not
empowered under the Guardianship Act to authorise psychiatric treatment.
Section 7B of the Guardianship Act prohibits a guardian from consenting to
treatment for certain medical procedures, including treatment for mental illness.
6. An argument emerged that the relevant people were at least complying with
psychiatric treatment and in some cases expressing willingness to accept
psychiatric treatment therefore there was no need to have a PTO in place and it
was important not to do so because a PTO was not the ‘least restrictive’ option,
which is a criterion stipulated in section 28 of the Mental Health Act that the
tribunal must be satisfied of before making a PTO. The relevant provision states
that ACAT may make a PTO if satisfied that, inter alia, psychiatric treatment is
likely to reduce the harm or deterioration caused by the mental illness and result
in an improvement in the person’s psychiatric condition and the treatment
cannot be adequately provided in a way that would involve less restriction of the
freedom of choice and movement of the person than would result from the
person being an involuntary patient.
7. Differently constituted tribunals took different approaches to the question of
whether it was necessary for orders to be made for psychiatric treatment.
Clearly a person can choose to accept psychiatric treatment voluntarily when
they have full capacity but the question is whether someone who lacks full
capacity can ‘consent’ to psychiatric treatment.
Request to Establish a Ruling Tribunal
8. ER was born in 1960. She has a mild to moderate intellectual disability and has
been diagnosed with bipolar disorder. In 1995 the Public Advocate was
appointed ER’s Plenary Guardian and the Public Trustee was appointed her
financial manager. By 2002 both of her parents had passed away. She lives in a
group home as a client of Disability ACT.
9. The appointment of the Public Advocate as ER’s guardian has been renewed
and continued with variations over the years. It was last confirmed and re-issued
on 14 October 2014 for a period of three years. The relevant terms of this
appointment are currently as follows:
Appointment of Guardian
1. The Public Advocate of the Australian Capital Territory is appointed
guardian for ER (the protected person) with the following powers:
(a) to decide where, and with whom the protected person is to live;
(b) to decide whether the protected person should work including:
(i) the nature of the work she should do;
(ii) the place or places she should be employed;
(iii) the identity of the employer;
(c) to give any consent required for a medical procedure or other
treatment (other than a prescribed medical procedure);
(d) to make other personal decisions and arrangements needed to
ensure that the protected person’s health and welfare needs are
met and to protect her from unreasonable risks to her health and
welfare.
(e) to do the things necessary to give effect to decisions about the
matters set out above, including (but not limited to):
(i) giving or receiving information; or
(ii) giving consent to investigations or assessments; or
(iii) participating in negotiations;or
(iv) signing documents.
10. ER has been the subject of numerous PTOs since 1995. While there have been
periods of time during which no PTO has been in place, PTOs have been
continuously in place from June 2008 save for a short period in 2011 when no
order was in place. The order that is currently in place was made on
30 April 2015 and operates for 6 months.
11. By 2011, the tribunal was receiving reports at hearings convened to review the
PTOs that expressed the view that ER could consent to the psychiatric treatment
that she receives. However, the Public Advocate as ER’s guardian supported the
continuation of a PTO because ER was ‘unable to give informed consent to
treatment for her mental illness’.1
12. On 29 July 2011, the Public Advocate lodged an application for a mental health
order with a covering letter indicating that the Public Advocate was concerned
that ER does not have capacity to provide informed consent to treatment and
that she is being administered treatment without lawful consent. The application
attached a report by Dr Peter Wurth dated 27 May 2011. It was heard on
15 August 2011.
1 Email from Public Advocate to Tribunal dated 8 April 2011
13. Dr Wurth's report stated as follows:
I questioned [ER] today about her understanding of medication. She is
very clearly of the understanding that medication is necessary to keep her
well, and she is very keen to keep her current combination of tablets. She
identified this combination as very helpful, and far better than her
previous treatment. ... She understood that if she were to cease medication
she would run the risk of becoming sick ... and ending up in hospital. She
was unable to name her current medication other than lithium carbonate.
She was unable to enter into any discussion about the roles of the three
different psychotropics she takes. She therefore does not have the capacity
for fully informed consent. She certainly however would have the capacity
for objection to taking medication and she clearly is not exercising this.2
14. At the hearing convened on 15 August 2011, one member of the panel indicated
that he was inclined to decide that no order should be made but recognised that
there was a difficult question to be answered and that it was appropriate for an
order to be in place while the question was considered more closely. The two
remaining members of the panel were of the view that an order should be made
but that, given the apparent difference of opinion between the Public Advocate
and the Dual Disability Service and the different views taken by members of the
tribunal, it was appropriate to request that a Ruling Tribunal be asked to
consider the relevant question of law. The Public Advocate's representative
supported that approach.
15. Therefore the General President requested the Appeal President to establish a
Ruling Tribunal under section 77 of the ACT Civil and Administrative Tribunal
Act 2008 (the ACAT Act) to formulate a question of law and to answer it.
Conduct of the Proceedings
16. The Chief Psychiatrist and Public Advocate were parties from the inception of
the Ruling Tribunal and leave was given for certain other parties to appear at the
hearing and to make submissions. On 18 November 2011 Advocacy for
Inclusion (AFI) and a representative of the Dual Disability Service were given
leave. As stated above, the Dual Disability Service subsequently became known
as MHS-ID. The question of law was formulated on 27 January 2012.
Subsequently, on 24 February 2012, ACT Disability, Aged, and Carer
Advocacy Service (ADACAS) and the Human Rights Commission (HRC) were
also given leave to participate in the hearing. ER was seen by various experts
2 Report of Dr Wurth dated 27 May 2011
for the purpose of preparing reports for the Tribunal. ER suffered ill-health in
2012 due to a relapse of her bipolar disorder and a hearing was convened on 9
and 10 May 2013. Submissions were received subsequent to the hearing. ER
suffered another relapse of her bipolar disorder and suffered ill-health from
April 2014 - July 2014 and the tribunal requested a report and submissions from
the parties regarding the April 2014 relapse. In September 2014 ER participated
in a supported decision-making project run by ADACAS which was the subject
of a further report and submissions by the parties.
17. Although it has taken longer than is ideal to provide a decision on the question
of law, the timeframe has enabled the Tribunal to test the evidence provided at
the hearing about ER’s capacity to consent to psychiatric treatment from ‘time
to time’. This timeframe has been pivotal in allowing the Tribunal to form a
conclusion about ER’s capacity to consent.
18. The Tribunal wishes to express its gratitude to ER for participating in this case
and providing us with important insights to assist the Tribunal and stakeholders
to answer the question of law.
Evidence and Submissions
19. The submissions filed by the parties, including the interested parties, are listed
in Schedule 2. Other material was admitted into evidence during the hearing.
The Tribunal has considered all the submissions and evidentiary material,
however the material filed by the parties was extensive and the Tribunal has
attempted to pare down the parties’ arguments to the essential issues relevant to
the question of law in this decision rather than summarising all of the
submissions. The expert evidence given in the proceedings is summarised in
Schedule 4 and the evidence of the lay witnesses (Mr Leahy and Ms Bolton) is
summarised in Schedule 5. Schedule 6 has a summary of the evidence regarding
ER’s relapse in 2014 and Schedule 7 summarises the evidence regarding ER’s
participation in the ADACAS supported decision-making project in September
2014.
THE LEGAL FRAMEWORK – GENERALLY SPEAKING
20. The common law recognises two competing interests that are in play when
determining whether an adult has capacity to consent to medical treatment. As
stated by McDougall J in Hunter and New England Area Health Service v A (by
his Tutor T) (Hunter)3
The common law recognises two relevant but in some cases conflicting
interests:
(1) a competent adult's right of autonomy or self-determination:
the right to control his or her own body; and
(2) the interest of the State in protecting and preserving the lives
and health of its citizens.4
21. The test for capacity for consent to medical treatment that applies in Australia is
as set out by McDougall J in Hunter citing Butler-Sloss LJ in Re MB:
There is a presumption of capacity, whereby an adult ‘is presumed to have
the capacity to consent to or refuse medical treatment unless and until
that presumption is rebutted’: see Butler-Sloss LJ in Re MB (An Adult:
Medical Treatment) [1997] 2 FCR 541 (at [553]).5
22. McDougall J further commented as follows:
In this context, it is necessary to bear in mind that there is no sharp
dichotomy between capacity on the one hand and want of capacity on the
other. There is a scale, running from capacity at one end through reduced
capacity to lack of capacity at the other. In assessing whether a person
has capacity to make a decision, the sufficiency of the capacity must take
into account the importance of the decision .... . The capacity required to
make a contract to buy a cup of coffee may be present where the capacity
to give away one's fortune is not.6
23. His Honour McDougall J continued:
As Butler-Sloss LJ said in [Re MB at 553-554], in deciding whether a
person has capacity to make a particular decision, the ultimate question is
whether that person suffers from some impairment or disturbance of
mental functioning so as to render him or her incapable of making the
decision. That will occur if the person:
(1) is unable to comprehend and retain the information which is
material to the decision, in particular as to the consequences of the
decision; or
(2) is unable to use and weigh the information as part of the process
of making the decision.7
3 [2009] NSWSC 761 4 [2009] NSWSC 761 at [5]; HRC submissions dated 25 January 2013 at [17] 5 [2009] NSWSC 761 at [23]; Chief Psychiatrist closing submissions dated 3 June 2013 at [1] ff 6 [2009] NSWSC 761 at [24] 7 [2009] NSWSC 761 at [25]
24. The test in Hunter is consistent with the formulation by the English High Court,
Family Division in Re C (Adult: Refusal of Treatment) (Re C) which requires an
assessment of whether the person ‘sufficiently understands the nature, purpose
and effects of the proffered [treatment].8 In Re C, the court adopted an analysis
of the decision-making process in three stages:
first, comprehending and retaining treatment information, second,
believing it and, third, weighing it in the balance to arrive at a choice.9
25. The Tribunal notes that some evidence given during the hearing was based on
the capacity test enunciated in Gillick v West Norfolk and Wisbech Area Health
Authority (Gillick).10
The Public Advocate placed some weight upon the use of
this test for capacity by an expert relied upon by the Chief Psychiatrist,
Dr Kasinathan. The Tribunal concurs with the submissions made by the HRC
that the tests stated above are largely consistent with Gillick although the Gillick
test is concerned with those under the age of 18 years. The proposition stated in
Hunter that ‘an adult’ is presumed to have capacity to consent or refuse medical
treatment may or may not apply to children and young people. As noted by the
HRC,11
the test in Gillick is consistent with Hunter and was applied by the High
Court in Secretary of the Department of Health and Community Services v JWB
(Marion's Case).12
The Tribunal does not consider that partial reliance upon the
Gillick factors vitiates the expert opinion provided by Dr Kasinathan.
26. If a person has capacity, then he or she may validly decide to accept treatment
and may make equally validly decide to refuse the treatment. The Tribunal did
not discern any significant disagreement about this proposition in the parties’
submissions,13
however there was some disagreement about how to interpret
refusal in the context of fluctuating capacity. This is dealt with below.
8 (1994) 1 WLR 290 at 295 9 (1994) 1 WLR 290 at 295 10 [1985] 3 All ER 402 11 HRC submissions dated 5 July 2013 at [5] 12 (1992) 175 CLR 218 13 see for example Chief Psychiatrist submissions dated 3 June 2013 at [55] ff
‘Lawful’ Consent
27. The imposition of medical treatment without the consent of a person is a
battery.14
The Public Advocate argued that if she, as ER’s guardian, considers
that obtaining treatment for ER’s mental illness is essential to protect ER’s
mental health and welfare and prevent any mental deterioration 15
recourse must
be had to an application for a mental health order.16
The Public Advocate
further submitted that a PTO makes psychiatric treatment lawful when a person
refuses to consent or lacks the capacity to consent.17
Further, the Public
Advocate argued that authorisation for ER’s treatment stems from ER’s treating
psychiatrist under the PTO and it is not apparent upon what legal basis the staff
at the group house where ER resides could administer medication in the absence
of an order.18
This scenario is contingent upon a finding that ER lacks capacity.
This is dealt with below.
A sliding or ‘spectrum’ approach to capacity
28. The parties differed on the question of whether the test for capacity
contemplates a ‘sliding scale’ or as being on a spectrum’. The Public Advocate
submitted that:
[a]ny suggestion of a sliding scale of capacity to consent to medical
treatment is ill founded and should be rejected. A person either has
capacity to consent to medical treatment or they do not.19
29. The other parties did not share this view.20
For example, the Chief Psychiatrist
argued Hunter (which is quoted above) is the leading Australian decision on
capacity and it directly contradicts the Public Advocate's view by stating (as
mentioned above):
14 ACT v JT [2009] 4 ACTR 68 at [26] 15 Section 5A of the Guardianship Act 16 A mental health order here means a psychiatric treatment order, a community order or a
restriction order – see definition under the Dictionary, Mental Health (Treatment and Care) Act 1994 (Mental Health Act)
17 Section 29 Mental Health Act 18 Public Advocate submissions dated 8 February 2013 19 Public Advocate closing submissions dated 14 June 2013 at [3] 20 See for example, Chief Psychiatrist submissions dated 2 August 2013 at [12]; ADACAS
submissions dated 5 July 2013 page 3; HRC submissions dated 5 July 2013 at [19]; AFI submissions dated 4 July 2013 page 2
there is no sharp dichotomy between capacity on the one hand and
want of capacity on the other. There is a scale, running from capacity
at one end through reduced capacity to lack of capacity at the other.21
30. As stated by O’Neill and Peisah,22
it is generally accepted that capacity is not a
unitary concept but rather refers to specific decisions, tasks or domains.23
Capacity is task or domain specific and is peculiar to the particular decision that
is to be made. This was acknowledged by the High Court in Gibbons v Wright
as follows:
[T]he mental capacity required by law in respect of any instrument is
relative to the particular transaction which is being effected by means of
the instrument, and may be described as the capacity to understand the
nature of the transaction when it is explained.24
31. Thus, capacity cannot be extrapolated from one capacity task to another.25
32. Further O’Neill and Peisah assert that even within a particular type of decision
or task category, capacity may vary:
[w]ithin a single domain or capacity task there is a spectrum or hierarchy
of decisions from simple to complex and accordingly people may be
capable of making simple decisions but not more complex ones. 26
33. The authors give the example of a person with dementia who may have the
capacity to make a simple will, for example leaving a single asset such as their
house to their spouse, but may not have the capacity to make a complex will, for
example dividing an elaborate estate involving a securities and real estate
portfolio amongst multiple, conflicting beneficiaries with fractional interests.27
34. The Tribunal further notes the submissions made by ADACAS and AFI
regarding the importance of recognising support for decision-making as an
element of the spectrum of capacity. As stated by ADACAS:
Recognition for a spectrum of capacity emerges from the UNCRPD
[the UN Convention on the Rights of Persons with Disabilities] and, as
21 Hunter at [24]; Chief Psychiatrist submissions dated 2 August 2013 [12] 22
O’Neill, N & Peisah, C, Capacity and the Law (Sydney University Press, 2012) (O’Neill and Peisah) 23 O'Neill and Peisah page 1 24 (1954) 91 CLR 423, 438 25 O'Neill and Peisah page 2 26 O'Neill and Peisah page 1 27 O'Neill and Peisah page 2
such, is recognised within a range of international jurisdictions
including Canada, the UK, Germany and Ireland.
The UNCRPD states that all people are born with rights, including the
right to legal capacity. The ability to act on these rights can be
exercised with support. The UNCRPD casts capacity outside the have
or have not paradigm, and into a spectrum by acknowledging that all
people have capacity and are able to exercise it, with levels of support
that are appropriate to them. The nature of some people's impairment
will mean that they may require high levels of support, others will
require less.
The level of support needed is also decision specific. Health decisions
may require more support than a lifestyle decision. The continuum
acknowledges on one hand the inherent capacity of all people, and the
level of support needed to exercise this capacity, on the other.28
35. The UN Convention on the Rights of Persons with Disabilities (UNCRPD) is
discussed in more detail below. The parties’ submissions also referred to the
report of the Victorian Law Reform Commission, which found that:
• capacity is decision-specific and time-specific and
• capacity is support dependent. 29
36. The Tribunal therefore rejects the Public Advocate’s assertion that a spectrum
of capacity is ‘ill founded’ and concludes that the concept is supported by the
case law and as well as extensive academic studies, policy work and legislation
within Australia and internationally. Further, as stated by ADACAS, it is a
concept that is at the foundation of the United Nations Convention.30
Human Rights Principles
37. Section 30 of the Human Rights Act requires the Tribunal to interpret a
Territory law in a way that is compatible with human rights, so far as it is
possible to do so consistently with the law’s purpose. Certain participants in this
matter, including the Chief Psychiatrist and the Public Advocate, are public
authorities under section 40B of the Human Rights Act and therefore it is
unlawful for them to act in a way that is incompatible with a human right.
28 ADACAS submissions dated 5 July 2015 page 3 29 Victorian Law Reform Commission: Guardianship: Final Report at page 121 30 ADACAS submissions dated 5 July 2013 page 3
38. The Tribunal had the benefit of extensive submissions provided by the parties,
particularly by the HRC, regarding the relevant human rights that are potentially
engaged in this matter. An involuntary mental health order may have the
potential to enliven the following human rights:
protection from torture and cruel, inhuman or degrading treatment31
privacy and reputation32
freedom of movement33
right to liberty and security of person34
39. International jurisprudence in this area has tended to focus on these key rights
even though other rights may be engaged such as the freedom of expression
right.35
The HRC suggested that the following approach should be adopted
when considering the application of section 30 of the Human Rights Act.
44. The application of s.30 of the [Human Rights] Act in Tribunal matters
was … discussed by [the tribunal] in the matter of Allatt & ACT
Government Health Directorate [[2012] ACAT 67] in interpreting the
Freedom of Information Act 1989 and Health Act 1993. The … Tribunal
[in Allatt] noted that it must interpret relevant legislation in accordance
with s.30 of the HR Act.
45. The Tribunal first questioned if a human right was enlivened by the
legislation, and then followed the methodology adopted by Justice Penfold
of the ACT Supreme Court in Re Application for Bail by Islam [(2010)
FLR 158] notwithstanding the High Court’s decision in the Victorian case
of R v Momcilovic [[2011] HCA 11]. ….
46. In Islam, her Honour held that s.30 of the [Human Rights] Act should
be applied at an early stage in the process of interpreting legislation
(rather than at the end). In Allatt, the Tribunal confirmed that s.30 is not a
special rule of interpretation, and noted that this aspect of the Victorian
Court of Appeal decision in R v Momcilovic was upheld by the majority of
the High Court, and cited the statement of French CJ that the provision:
... requires statutes to be construed against the background of
human rights and freedoms set out in the Charter in the same way
as the principle of legality requires the same statutes to be
31 Section 10 of the Human Rights Act 2004 32 Section 12 of the Human Rights Act 2004 33 Section 13 of the Human Rights Act 2004 34 Section 18 of the Human Rights Act 2004 35 HRC submissions dated 25 January 2013 at [49]-[50]
construed against the background of common law rights and
freedoms. 36
47. The Commission agrees that the High Court decision in Momcilovic
does not appear to have negated the ACT authority of Penfold J’s
decision in Islam. This methodology determined by Penfold J, and
adopted by the Tribunal in Allatt... . 37
48. We will proceed to apply this methodology to the provisions identified
by the Tribunal in the present matter. 38
40. After framing the tests in Islam and applying them to the question of law in the
present case, the HRC concluded that the definition of capacity at common law
has not been displaced.39
The Tribunal respectfully agrees with this submission.
UN Convention on the Rights of People with Disability
41. ADACAS submitted that, consistent with the UNCRPD, it is appropriate to give
ER as much support as necessary to enable her to retain the right to make
decisions about her own life i.e. to achieve each of the steps of the decision-
making process, including communication of the decision.40
42. ADACAS and AFI submitted that the role of a person who supports someone to
retain decision-making autonomy is crucial in a case such as the present one.
The qualities of an appropriate support person include the requirements that
they be:
• free of conflict of interest in the decision being made;
• trustworthy and trusted;
• skilled at providing support to people with impaired capacity; and
• conscientious about ensuring that the decision does not become a
substitute one.41
43. The Tribunal also concurs with these submissions.
36 Momcilovic v The Queen [2011] HCA 34 37 HRC submissions dated 25 January 2013 at [44]-[48] 38 HRC submissions dated 25 January 2013 at [44]-[48] 39 HRC submissions dated 25 January 2013 at [67] ff and [96] 40 ADACAS submissions dated 25 January 2013 page 2 41 ADACAS submissions dated 25 January 2013 page 2
Conclusion on the Legal Framework
44. The Tribunal concludes that the authorities discussed above, and other sources
referred to in the submissions, may be summarised as follows:
The common law presumes that a person has capacity to make a decision
and this presumption is reinforced by the obligation under section 30 of
the Human Rights Act to interpret law in a way that is compatible with
relevant human rights and the operation of those rights, including the
rights to protection from torture and cruel, inhuman or degrading
treatment, the right to privacy and reputation and the right to liberty and
security of person as well as the UNCRPD.
Capacity may fluctuate.
Capacity must be assessed in relation to the decision to be made.
The assessment of capacity is specific to the relevant decision, which in
this case is a decision about ER’s psychiatric treatment.
The test is not applied to psychiatric treatment generally, or to different
treatment that may or may not be needed in future.42
The person making the decision should be given the necessary support to
make the decision.
The onus is on the applicant to rebut the presumption of capacity.
WHAT THE TRIBUNAL NEEDS TO DECIDE IN THE PRESENT
PROCEEDINGS
45. The Tribunal must decide whether ER can give lawful consent to psychiatric
treatment from time to time. In determining that question there is a further sub-
question about whether ER, as a matter of fact, has capacity to consent to
psychiatric treatment from time to time. The question of law has some further
sub-questions to guide interpretation and provide a context or methodology for
answering the question of law. The sub-questions refer to sections 26, 28(d) and
33 of the Mental Health Act and section 30 of the Human Rights Act. Section
26 of the Mental Health Act states that when making a mental health order in
relation to a person, ACAT must take into account a number of factors
including:
42 HRC submissions dated 5 July 2013 at [4]
(a) whether the person consents, refuses to consent or has the capacity to
consent, to a proposed course of treatment, care or support.
46. Section 28 is the main provision that gives power to ACAT to make a PTO, as
discussed above. It stipulates that ACAT may make a PTO in relation to a
person if …
d) the treatment cannot be adequately provided in a way that would
involve less restriction of the freedom of choice and movement of the
person than would result from the person being an involuntary patient.
47. Section 33 requires that before treatment is given under a PTO the Chief
Psychiatrist must explain to the person the nature and effects (including any side
effects) of the treatment.
48. However, it is noteworthy that the present proceedings are not proceedings
where a PTO could be made or indeed is even sought. Although PTOs have
been made regarding ER in the past, the present proceeding is determining a
question about her capacity to consent to treatment as a voluntary patient. This
question differs from the question that the tribunal asks itself pursuant to
sections 26 and 28 of the Mental Health Act when making an involuntary
mental health order.
49. The Tribunal notes the helpful submissions provided by the HRC regarding
section 26 of the Mental Health Act. The HRC submitted that whilst these
provisions imply that the question of a person’s capacity to consent is relevant
to the imposition of an involuntary mental health order under section 28 of the
Mental Health Act, it is unclear what weight or relevance this question should
have on the determination of whether to impose an order and/or rely on the
common law rules of consent. The HRC examined the original section 27 of the
Mental Health Act 1994, which emphasised consent to a greater extent than the
present provision, as well as the Explanatory Statement which applied to the
amendments in the 1998 review of the Mental Health Act. Clause 12 of the
Explanatory Statement referred to the ‘further consideration as to whether the
person has capacity, and whether they are refusing to consent’.43
The
Explanatory Statement continued that consent:
43 HRC submissions dated 25 January 2013 at [64]
can have a significant impact on the type of order to be imposed and the
type of services which will need to be available to give effect to the order44
In commenting upon these provisions the HRC stated:
[t]his statement confirms that an order can be made (albeit a different
kind of order) in circumstances where a person has the capacity to
consent and is, or is not, consenting to the order. The Explanatory
Statement also supports this conclusion, in describing the reasons for the
change in approach by repealing the former s.26:
Section 26 of the Act is no longer required as the Tribunal, under
amendments referred to above, will be required to consider the
issue of consent prior to making an order.
Unlike the former provisions, these amendments give little guidance on
what the Tribunal should do having considered and made a determination
about a person’s capacity to consent, and their wishes,45
50. Therefore, the capacity to consent is a factor that the tribunal must take into
account when making a mental health order but it is not determinative of the
outcome, rather it is a factor to be considered. The consequence of this
interpretation is that the tribunal may make a mental health order if satisfied of
the requirements under the Mental Health Act (particularly section 28 as regards
a PTO) but the order may nevertheless be made even if the tribunal concludes
that the person has capacity to consent to the order or, alternatively, if the
tribunal concludes that the person lacks capacity to consent to the order.
51. As stated in the submissions by the Chief Psychiatrist: 46
This question of capacity is central, but not necessarily sufficient, to
determine whether a PTO ought to be made (or revoked) in respect of ER.
There are other considerations that will not be considered in answering
the question of law but which the tribunal would need to take into account
before making a PTO, including the matters in section 26 of the [Mental
Health Act].47
52. The Tribunal notes the submissions made by the Public Advocate regarding
section 28 of the Mental Health Act. The Public Advocate submitted that there
is no evidence that ER is aware that she is under a PTO or that the order
imposes any specific restrictions on her. The Public Advocate advised that:
44 HRC submissions dated 25 January 2013 at [64] 45 HRC submissions dated 25 January 2013 at [65]-[66] 46 Chief Psychiatrist submissions dated 20 February 2013 47 Chief Psychiatrist submissions dated 20 February 2013 at [17]
The requirements under the Management of Consumers Subject to PTOs48
ensure that ER is subject to regular review on a monthly basis by her
treating team and regularly (3 monthly) by her treating psychiatrist. It is
apparent that in ER's case continuity of care is significant … and she has
become familiar with the routine administration of medication and
trusting of Dr Wurth who has treated her over the last 4 to 5 years.
Given her disability ER requires supported accommodation with 24 hour
supervision. There is no evidence to support a change in accommodation
or a lessening in the restrictions of the group home. On the contrary ER
requires a high level of supported accommodation and assistant (sic) with
daily living skills.49
53. The Tribunal respectfully agrees with the Chief Psychiatrist’s submission that
questions about making PTOs are outside the scope of the present proceedings
because these proceedings are confined to the task of the Ruling Tribunal which
is to give a ruling on the question of law referred under section 77 of the ACAT
Act.50
The Tribunal also accepts the submissions made by the Public Advocate
about ER’s current regime and living arrangements and care. Therefore, the sub-
questions referring to sections 26 and 28(d) of the Mental Health Act merely
provide the context within which to make findings about ER’s capacity and to
answer the question of law.
54. It is to be noted that the framework within which capacity is assessed and
decision-making about psychiatric treatment orders occurs will change when
certain provisions of the Mental Health (Treatment and Care) Amendment Act
2014 (Mental Health Amendment Act 2014) come into force. These provisions
will be discussed later in these reasons.
The Protection Imperative
55. The Chief Psychiatrist, HRC, ADACAS and AFI emphasised the importance of
not placing too much weight upon ER’s impairment when assessing capacity.
For example, in Marion's Case the majority judgment of Mason CJ, Dawson,
Toohey and Gaudron JJ stated:
48 Exhibit PA9 49 Public Advocate submissions dated 14 June 2013 at [33]-[34] 50 Chief Psychiatrist submissions dated 20 February 2013 at [17]
... it is important to stress that it cannot be presumed that an intellectually
disabled child is, by virtue of his or her disability, incapable of giving
consent to treatment.51
56. These parties warned the Tribunal against the ‘protection imperative’ when
assessing ER’s capacity. This was described by Justice Baker in KK v STCC as
follows:
There is, I perceive, a danger that professionals, including judges, may
objectively conflate a capacity assessment with a best interests analysis.
… I remind myself again of the danger of the ‘protection imperative’
identified by Ryder J in Oldham MBC v GW and PW [[2007] EWHC136
(Fam) [2007] 2 FLR 597]. These considerations underpin the cardinal
rule, enshrined in statute, that a person is not to be treated as unable to
make a decision merely because she makes what is perceived as being an
unwise one.52
57. This raises the question about the characterisation of an autonomous refusal of
treatment that will be discussed below.
58. However, the Public Advocate presented an alternative view about the
‘protection imperative’, relying on Marion’s Case where the High Court
discussed the difficulties in assessing capacity and determined there was ‘no
unproblematic view of what constitutes informed consent ... its application in
many cases is fraught with difficulty’.53
The High Court further indicated that
the requirement of court authorisation ensured a form of protection for
vulnerable persons including persons with an intellectual disability. The High
Court noted that some procedures fall outside of the scope of a guardian to
consent because they involve risks, particularly in relation to competence and
the consequences of the treatment.54
The Public Advocate submitted that this is
the case with ER.
Informal Procedures
59. Related to this view is the issue regarding informal procedures when people
lack capacity to consent. In HL v United Kingdom55
(HL) the European Court of
Human Rights (ECHR) found that HL, who had been informally admitted to a
51 [1992] 66 ALJR 300, at page 61 52 HRC Submissions dated 5 July 2013 at [16]; KK v STCC [2012] EWCOP 2136 at [65] 53 At [50] 54 At [52] and [53] 55 (2005) 40 EHRR 32; [2004] 9 ECHR 191
mental health facility but was found some months later to lack the capacity to
consent to treatment, had been deprived of his liberty because he had been
under continuous supervision and had not been free to leave.56
The ECHR noted
a lack of procedural rules under British law for admission and detention of
‘compliant incapacitated persons’ when compared to the extensive network of
safeguards applicable to those treated involuntarily under the mental health
regime. The ECHR found that key protections were missing from the UK law,
particularly in relation to decisions being reviewed by a court.57
Following HL,
the Public Advocate submitted that:
The effect of this decision was to reinforce that ‘informal' admission
procedures were not appropriate for those individuals who lack the
capacity to consent to treatment, but who are compliant with it. This
mirrors the approach taken by the majority of the Supreme Court of the
United States in Zinermon v Burch 494 US 113 (1990) in which
procedural safeguards were deemed necessary for voluntarily admitting
an individual who lacked the capacity of give informed consent. The court
in that case, however, did not specify what those procedural safeguards
should be.58
60. This submission moves into the question of how ER’s acquiescence in the
psychiatric treatment should be characterised.
The Administration of Treatment in a Controlled Environment and
Acquiescence
61. The uncontested evidence is that ER willingly accepts the psychiatric treatment
provided by way of the provision of medication within the structured
environment where she resides. However, as argued by the Public Advocate:
In order to be valid, consent must be voluntarily given. Acquiescence or
compliance does not equate to voluntariness. In ER's case substituted
consent is authorised for a number of rudimentary matters. The fact that
she complies with being administered psychiatric medication does not
equate to consent particularly where she is compliant with persons who
hold positions of authority. ER does not manage her own medication nor
56 At [91] 57 Public Advocate submissions dated 18 January 2013 at [54]-[55] and HRC submission dated 25
January 2013 at [89] 58 Public Advocate submissions dated 18 January 2013 at [55]
does she voluntarily monitor her medication levels by organising routine
blood tests.59
62. However, in reply the Chief Psychiatrist emphasised:
It is no part of the Chief Psychiatrist's case that treatment may be
administered without supervision of a court or tribunal to a person
without the capacity to consent merely on the basis that the patient is
compliant with the treatment.60
63. The Tribunal concurs with both these positions. The issue is how acquiescence
to treatment should be interpreted in the structured environment within which
ER lives.
64. ER receives treatment in a particular context, that is, her treatment is provided
in a controlled environment and her medication is administered by staff. This
led the Public Advocate to argue the following:
Given ER's level of functioning it is open to the Tribunal to find that any
consent given by ER is involuntary. She does not control her medication
but has it administered to her. She cannot and does not choose to take
extra medication when needed as she is unable detect a deterioration in
her mental state as she is unable to recognise these symptoms.
Acquiescence and compliance does not equate with voluntariness.61
65. Conversely ADACAS commented:
As ER lives, and will continue to live, in supported accommodation with
24 hour staff support, [it is] unclear as to how this is relevant. In such a
setting residents do not have access to their medication without staff
support for a range of appropriate safety reasons. As such, ER’s consent
to psychiatric treatment is not linked to a requirement that she self –
dispense the medication as in her setting there is no expectation that she
be responsible for remembering to do so. Indeed it is highly unlikely she
would ever be permitted to do so.62
66. Similarly the Chief Psychiatrist submitted that:
What ER would do if medication was not administered or her tests not
arranged for her is entirely hypothetical as those things do in fact occur
59 Public Advocate submissions dated 18 January 2013 at [42] 60 Chief Psychiatrist submissions dated 20 February 2013 at 11.4 61 Public Advocate closing submissions dated 14 June 2013 at [24] 62 ADACAS submissions dated 25 January 2013 page 2
and it would be inappropriate for the staff to cease doing them. In any
event, the question of consent is entirely separate from the support a
person may be given, such as the organising and preparation of
medication, to be able to exercise their freedom to consent. It could not
for example be said that a person experiencing physical incapacity, such
as quadriplegia, had no capacity to consent simply because they needed to
rely on support of others to physically organise and administer their
treatment.63
67. The Tribunal agrees with the submissions made by ADASCS and the Chief
Psychiatrist that the question of consent is a separate issue to the support that a
person may be given. However in this case a break in the provision of support
did raise a question about the nature of ER’s acquiescence and whether her
conduct supported a conclusion of fact that she has capacity to consent to
psychiatric treatment from time to time. This will be discussed below.
ACT Health – Consent to Treatment – Procedure
68. Although the Victorian Law Reform Commission noted that:
[t]here are no definitive, scientific tests for use when assessing whether a
person meets a particular capacity standard.64
the parties agreed65 that the A.C.T. Health Consent to Treatment: Procedure
(CED 09 - 007) (ACT Health Consent Procedure) 66
is an effective instrument to
assess ER’s capacity. The relevant provisions of the ACT Health Consent
Procedure are set out in Schedule 3 below.67
69. The ACT Health Consent Procedure requires that an assessment of competence
should involve three aspects:
1. Does the person understand?
2. Does the person believe what they are being told?
3. Can the person make a judgment based on this information?
63 Chief Psychiatrist submissions dated 20 February 2013 at [7] 64 Victorian Law Reform Commission: Guardianship: Final Report at 7.22 65 Public Advocate submissions dated 18 January 2013 at [35] and 14 June 2013 at [4]; ADACAS
submissions dated 5 July 2013 page 1; HRC submissions dated 25 January 2013 at [30]; Chief Psychiatrist submissions dated 7 November 2014 at [13]
66 Patient Safety and Quality Unit, ACT Health, Consent to Treatment: Procedure (CED 09-007), November 2011
67 Public Advocate submissions dated 18 January 2013 at [35]
The three aspects of the ACT Health Consent Procedure broadly correspond
with the 3 limbs of the formulation used by the English High Court in Re C.
70. The Tribunal considers that the first and second limbs of this test were helpfully
elaborated by the submissions of the Chief Psychiatrist so the following must be
considered in relation to the first limb:
(a) the treatment under consideration
(b) an understanding of her mental illness
(c) an understanding of the nature and purpose of treatment
(d) an understanding of the effects of treatment.
71. The second limb requires ER to believe the information that she has been told.
72. The third limb requires ER to weigh the information to make a choice.68
73. ADACAS also provided the Tribunal with a test for capacity that is helpful and
elaborates somewhat upon the ACT Health Consent Procedure. It states as
follows:
1. Does the person identify and understand the decision that needs to
be made?
2. Does the person understand the range of options that may be chosen
to address the issue or problem?
3. Can the person weigh up the benefits or consequences of each of the
options?
4. On the basis of this process, is the person able to make a decision
about the problem? and
5. Can the person communicate their decision?69
74. O’Neill and Peisah state that although accepted legal standards that define
capacity and competency vary, operational definitions of the cognitive elements
of capacity usually consist of a combination of the following abilities:
1. To understand the specific situation, relevant facts or basic
information about choices
2. To evaluate [the] reasonable implications or consequences of
making choices
3. To use reasoned processes to weigh the risks and benefits of the
choices
4. To communicate relatively consistent or stable choices.70
68 Chief Psychiatrist submissions dated 3 June 2013 at [4]-[18] 69 ADACAS submissions dated 25 January 2013 page 2
Fluctuating Capacity
75. The Tribunal accepts the submission made by the Chief Psychiatrist that the
degree of any person's capacity may fluctuate over time and may be diminished
by factors such as illness, fatigue, intoxication, pain, or undue influence.
Further, this observation applies to the population generally, not just a person
living with intellectual disability. A person's capacity to make decisions may
also improve over time.71
76. The parties agreed that it is only where ER lacks or loses sufficient capacity to
make decisions about her psychiatric treatment that the tribunal should make a
PTO. The HRC argued that a PTO may be preferable where a person's capacity
is fluctuating substantially from time to time, because such an approach may be
less restrictive than the person repeatedly returning to the tribunal to have that
capacity reassessed.72
77. However, in terms of assessing capacity, a major consideration is how a relapse
should be characterised. The Public Advocate argued that ER has never had
capacity to consent. The other parties argued that she has fluctuating capacity
but the issue of relapse should be considered separately because, as argued by
ADACAS, her capacity to consent must be assessed at the present time.
Although it is likely at some time in the future she will again exhibit increased
symptoms and that new treatment and care decisions will need to be made, they
are future decisions about treatment at that time.73
Alternatively, the Chief
Psychiatrist argued that if ER were to show early warning signs of relapse, she
could consent to necessary changes to her medication until such time as her
deterioration is such that she loses capacity. If there is doubt over her capacity,
it should be assessed promptly. If she loses capacity and needs a change in
medication, then a PTO should be sought.74
The Chief Psychiatrist submitted
that:
A PTO granted ‘just in case’ ER has a relapse would not be a proper
exercise of the power in s28 of the [Mental Health] Act. Such an order
would not satisfy the ‘least restrictive’ requirement because ER could take
70 O’Neill and Peisah page 1 71 Chief Psychiatrist submissions dated 3 June 2013 at [48]-[49] 72 HRC submissions dated 5 July 2013 at [52] 73 ADACAS submissions dated 25 January 2013 page 3 74 Chief Psychiatrist submissions dated 3 June 2013 at [68]
her treatment voluntarily unless and until she loses her capacity and only
then should a PTO be sought.75
78. Further, in his submissions on the evidence, the Chief Psychiatrist stressed that:
Well-documented and recognisable warning signs building up over a
period of weeks would be expected to precede any future relapse and
would give the Tribunal enough time to make a PTO if and when needed
instead of making an unnecessary and unduly restrictive PTO now.
The Tribunal should not make a PTO just in case she has a relapse
because this is not likely over the next 6 months, the maximum duration of
a PTO.76
79. The Tribunal has concluded that the capacity to consent must be assessed over a
period of time, so it does not accept ADACAS’s submission that capacity may
be assessed by present circumstances only. It must include a future component
in order to capture the fact that treatment is ongoing. The Tribunal considers
that the period within which capacity to consent must be maintained would
include a period when a possible relapse may occur and although it agrees with
the Chief Psychiatrist’s submission that a PTO should not be made ‘just in
case’, it disagrees with the analysis of the evidence of capacity presented by the
Chief Psychiatrist. This will be discussed below.
PRIMARY QUESTION REGARDING THE LEGAL EFFECT OF THE
GUARDIANSHIP ORDER
80. The Tribunal finds that the order made on 18 October 2011 appointing the
Public Advocate as guardian of ER does not cover every decision to be made by
ER and ER’s capacity must be assessed by reference to the decision to be made.
The Tribunal notes the arguments made by the Public Advocate that the issue of
‘free consent’ to medical treatment does not arise in circumstances where the
Tribunal determined that it was necessary to appoint the Public Advocate to
consent to medical treatment on ER's behalf,77
however we are not persuaded by
this argument because a person's impaired decision-making ability cannot, of
itself, negate their capacity to consent to a particular treatment. The
Guardianship Act is carefully drafted so that the appointment of a guardian
allows that guardian to make certain decisions which are nominated under
section 7(3) of the Guardianship Act. For example, the powers that may be
75 Chief Psychiatrist submissions dated 3 June 2013 at [72] 76 Chief Psychiatrist submissions dated 2 August 2013 at [10] and [21] 77 Public Advocate submissions dated 14 June 2013 at [34]
given to a person’s guardian include the powers to decide where and with whom
the person is to live, what education or training the person is to receive, whether
the person is to be allowed to work (and if the person is allowed to work to
decide the nature of the work, the place of employment and the employer), to
give consent for a medical procedure or other treatment other than a prescribed
medical procedure and to bring or continue legal proceedings for or in the name
of the person.
81. Clearly there is a restriction on the powers of the guardian under section 7B
which states that a guardian does not have the power to give consent for a
prescribed medical procedure and ‘prescribed medical procedure’ is defined in
the Dictionary as including treatment for mental illness. Nevertheless there is no
intention in the Guardianship Act to cover the field of decision-making and,
consistent with the UNCRPD and the obligation of the Tribunal to interpret the
Guardianship Act in accordance with the right to liberty and security of the
person under section 18 of the Human Rights Act, the Tribunal concludes that a
finding of impaired decision-making does not automatically preclude a
protected person, and in this case ER, from lawfully consenting to psychiatric
treatment.
82. As will be discussed below however, ER may only lawfully consent to
treatment if she has capacity to consent. The Tribunal finds as a matter of fact
that the ER does not have capacity to consent. However, the answer to the
general question of law posed in paragraph 1 is ‘no’ because the finding that ER
has impaired decision-making and appointing a guardian for particular decisions
under the Guardianship Act does not oust her liberty to make other decisions.
83. This approach is consistent with the reasoning of the High Court in Marion's
Case78
that intellectual disability is no reason, of itself, to presume that a person
is incapable of consenting to medical treatment.79
The Tribunal therefore adopts
the Chief Psychiatrist’s submission that a general finding of impaired-decision
making cannot automatically rule out the possibility that ER has capacity to
decide whether to accept her current treatment for mental illness. 80
78 (1992) 175 CLR 218 79 (1992) 175 CLR 218, 239 80 Chief Psychiatrist submissions dated 2 August 2013 at [24], [26]
SUB QUESTION 1 – ER’S CAPACITY TO CONSENT
Capacity to Consent Must Be Assessed by Reference to the Decision to be
Made
84. As stated by Lord Donaldson in Re T (Adult: refusal of treatment)81
what
matters is that the decision-maker should consider whether the person has
capacity that is commensurate with the gravity of the decision. The more serious
the decision, the greater the capacity required.82
‘Psychiatric Treatment from Time to Time’
85. The parties disagreed on the complexity or gravity of the decision that needs to
be made when assessing ER’s capacity to consent to psychiatric treatment from
time to time. The Public Advocate characterised the decision in the following
way:
Given the gravity of the treatment, the legislators in the A.C.T. have
placed the responsibility for this decision in the hands of a transparent
Tribunal. The medications ER is prescribed have potentially serious side
effects and require routine blood testing. From time to time
notwithstanding that ER has been medication compliant, she has
unexpectedly experienced a deterioration in her mental state requiring
emergency placement in a secure mental health facility.83
86. Conversely, in arguing that ER has the capacity to ‘decide for herself whether to
accept treatment’,84 the Chief Psychiatrist argued that:
The decision is not a complicated one. On the one hand, ER has a mental
illness that can make her very sick, the tablets are critical to ER staying
well and out of hospital and she has tolerated the medication very well
over the years. On the other hand, without her tablets, ER would relapse
and become severely unwell. ER understands all this. 85
87. The Tribunal has concluded that the decision to consent to psychiatric treatment
from time to time is more complicated than portrayed by the Chief Psychiatrist.
It would, for example involve some capacity to assess the side effects of
treatment, some capacity to understand the need for continuing treatment (which
leads to a longer time frame within which knowledge must be acquired and
retained) and some capacity to recognise the symptoms associated with a
deterioration in one’s mental state.
81 [1993] Fam 95 82 [1993] Fam 95, 113 83 Public Advocate submissions dated 14 June 2013 at [5] 84 Chief Psychiatrist submissions dated 2 August 2013 at [8] 85 Chief Psychiatrist submissions dated 2 August 2013 at [7]
88. As stated above, the Tribunal has concluded that the capacity to consent must be
assessed over a period of time. It must include a future component in order to
capture the fact that treatment is ongoing. The Tribunal considers that the period
within which capacity to consent must be maintained would include periods
when a possible relapse may occur.
Assessing the Evidence About ER’s Capacity I - The Hearing
89. Witness statements and oral testimony were provided on behalf of the Public
Advocate by Dr Thompson, Mr Phillip Leahy and Ms Tammy Bolton.
Dr Kasinathan provided a witness statement and gave oral evidence on behalf of
the Chief Psychiatrist. Dr Wurth provided various reports and gave oral
evidence. This evidence is summarised in Schedule 4 in relation to the expert
witnesses and Schedule 5 in relation to Mr Leahy and Ms Bolton.
90. In relation to the expert evidence, both Dr Wurth and Dr Kasinathan considered
that ER has capacity to consent to psychiatric treatment, whereas Dr Thompson
concluded that she does not have capacity to consent to psychiatric treatment.
The Chief Psychiatrist submitted that the Tribunal should prefer the evidence of
Dr Wurth and Dr Kasinathan because both have more relevant experience
working with patients with an intellectual disability and mental illness than
Dr Thompson. Further Dr Wurth is a Visiting Medical Officer with MHS-ID
and has significant experience in the field of dual disability.86
Dr Kasinathan has
recent, relevant and frequent experience in assessing capacity and particularly
assessing the capacity of patients with intellectual disability and mental
illness.87
In terms of recent experience with treating patients with dual
disability, Dr Thompson has only ‘a couple of patients’ that she sees quarterly.
Dr Thompson did not identify any significant experience with dual disability
since 197888
and had only seen ER once, whereas Dr Wurth was ER’s treating
psychiatrist and Dr Kasinathan saw ER on two occasions.
91. The Chief Psychiatrist also submitted that Dr Thompson had fundamentally
misunderstood the test for capacity because she assessed ER’s capacity, not in
relation to the current specific treatment, but in relation to psychiatric treatment
86 Chief Psychiatrist closing submissions dated 3 June 2013 at [27] ff referring to Exhibit CP5 87 Chief Psychiatrist closing submissions dated 3 June 2013 at [27] ff referring to Exhibit CP1;
Transcript of Proceedings 9 May 2013 page 82 88 Transcript of Proceedings 9 May 2013 page 55
generally, including extra medication, different medication and different
treatment that might become necessary in the future for the remainder of ER’s
life.89
The Chief Psychiatrist alleged that Dr Thompson was not aware that
capacity may fluctuate over time,90
nor was Dr Thompson aware that the
question of capacity is specific to the decision that needs to be made by the
person whereas Dr Kasinathan understood that capacity varies upon the domain
that one is looking at.91
92. The Public Advocate relied upon the evidence of Mr Leahy to establish that ER
has limited ability to make independent decisions in the group house and a
limited ability to understand the consequences of a decision.92
Mr Leahy gave
evidence that those supervising ER are required to be aware of behavioural
difficulties as potential indicators of the deterioration in ER’s mental state.93
He
further testified that ER has very limited ability to understand the nature of her
illness, the treatment she requires for her illness and the purpose of her
medication.94
He considered that ER has no ability to make a choice whether
she should continue to take the medication prescribed for her mental illness and
cannot differentiate between medication and treatment for her thyroid condition
and medication and treatment for mental illness.95
93. As regards the experts, the Public Advocate contended that Dr Thompson has
over 40 years experience as a treating psychiatrist and she applied the capacity
to give informed consent as the relevant test.96
The Public Advocate raised some
inconsistencies in the evidence of Dr Kasinathan and Dr Wurth regarding the
issue of ‘partial capacity’.97
94. The Chief Psychiatrist argued that there should be no reliance upon the evidence
of the lay witnesses because Mr Leahy gave no evidence at all about ER’s
89 Transcript of Proceedings 9 May 2013 page 61 90 Transcript of Proceedings 9 May 2013 page 72 91 See Chief Psychiatrist submissions dated 3 June 2013 at [33]; Transcript of Proceedings 9 May
2013 page 89 92 Public Advocate closing submissions dated 14 June 2013 Transcript of Proceedings 9 May
2013 page 18 93 Transcript of Proceedings 9 May 2013 pages 21-25 and 31-33 94 Transcript of Proceedings 9 May 2013 pages 19 and 35-36; Transcript of Proceedings 9 May
2013 pages 45 – 48 95 Transcript of Proceedings 10 May 2013 page 34 96 Public Advocate submissions 14 June 2013 at [12] 97 Transcript of Proceedings 10 May 2013 page 41
ability to understand her current medications98
and Ms Bolton’s evidence is no
more than monosyllabic answers of ‘no’ by ER to questions about her
understanding of why she takes her medication.99
95. ADACAS submitted that the evidence relied on by the Public Advocate was
focused on ‘fully informed’ consent rather than ‘legal’ consent and this was not
the appropriate manner that a person should be required to demonstrate legal
capacity to consent.100
ADACAS argued that ER has retained the relevant
information – that the current medications keep her well. Similarly ER has
weighed up the consequences of not taking the medication – that she might end
up back in hospital – with the benefits of taking them – it keeps her well – and
has decided to continue to take her medication. These responses, while less
formal and detailed then those that others might make, provide evidence that ER
has comprehended and retained information which is material to the decision, in
particular as to the consequence of the decision; and weighed the information as
part of the process of making her decision. Therefore ER has given clear
indication that she can meet the ‘legal’ test for capacity.101
Consideration of the Evidence on Capacity from the Hearing
96. The psychiatrists – Doctors Thompson, Wurth and Kasinathan – agree that ER
understands some aspects of her illness and has retained some information about
the treatment of her illness and is able to give reasons for wanting to continue
with the tablets. Where the experts mainly differ is the ambit of specific
treatment that constitutes ‘psychiatric treatment’ from time to time. The Chief
Psychiatrist argued that Doctor Thompson applied the wrong test because she
assessed ER’s capacity, not in relation to ER’s current specific treatment but in
relation to psychiatric treatment generally, including extra medication, different
medication and differential treatment that might become necessary in the future.
While the Tribunal agrees that ER’s specific treatment must be differentiated
from psychiatric treatment generally there is necessarily an element of
continuity in ER’s psychiatric treatment. Further, the Tribunal does not consider
that Dr Thompson was not aware that the question of capacity is specific to the
98 Chief Psychiatrist submissions dated 3 June 2013 at [41] 99 Chief Psychiatrist submissions dated 3 June 2013 at [40] 100 ADACAS submissions dated 5 July 2013 page 1 101 ADACAS submissions dated 5 July 2013 page 1
decision that needs to be made, rather, she disagreed with the ambit of the
decision that needed to be made in the current case.102
Further, the Tribunal
does not consider that Dr Thompson misunderstood the concept of fluctuating
capacity, because she answered ‘yes’ to a direct question about it at the
hearing.103
Rather her answers seem to have been directed to the question about
whether she knew about recent research that was relevant to the issue.104
Although Dr Thompson answered ‘no’ to the question of whether she was
aware that capacity can also be time and circumstances specific,105
it is
implausible that she would not be aware of fluctuating capacity given her
extensive experience as a psychiatrist and as a member of the mental health
tribunal in NSW.
97. Similarly, the Tribunal does not consider that Dr Kasinathan’s evidence about
ER having ‘partial capacity’, nor his application of the Gillick test (as discussed
above) means that his general evidence should be disregarded. Dr Kasinathan
has extensive experience in this area and has significant expertise that must be
accorded the requisite weight.
98. The Tribunal notes Dr Wurth’s comments referring to ER giving ‘implied
consent’. Dr Wurth agreed that ‘implied consent’ refers to a situation where a
patient passively cooperates in a process without discussion or formal consent
but stated that ER has:
better than implied consent. As a minimum she satisfies the criteria for
implied consent but not to the standard required for fully informed
consent.106
99. While Dr Wurth was clearly the person who is most familiar with ER and,
prima facie, the expert who was best able to assess her capacity to consent, the
Tribunal finds that he was confused about the test to be applied. Dr Wurth gave
frank evidence to the Tribunal that he altered his position regarding the
appropriate test for capacity from ‘informed consent’ to assessing a person on a
‘spectrum of consent’ which he only applies in practising in the ACT and when
102 Transcript of Proceedings 9 May 2013 page 72 103 Transcript of Proceedings 9 May 2013 page 72 Line 20 104 Transcript of Proceedings 9 May 2013 page 72 105 Transcript of Proceedings 9 May 2013 page 72 106 Transcript of Proceedings 10 May 2013 page 36
considering consent of a patient under a PTO.107
Therefore, for the purposes of
this matter, the Tribunal gives less weight to the evidence of Dr Wurth.
100. However, overall the evidence of Doctors Wurth and Kasinathan must be
examined in the light of the test for capacity which is discussed above. Both
doctors gave evidence which was equivocal about ER’s capacity to retain
information. For example, Dr Kasinathan described ER’s capacity as ‘partial’
because of her inability to weigh up with precision the side-effects and benefits
of the treatment.108
Similarly, Dr Wurth said that he did not consider that ER
was able to make a choice about whether to take the medication or not.109
The
Tribunal considers that while the views of Doctors Wurth and Kasinathan were
valuable in establishing that the first two limbs of the test (that ER understands
the nature and purpose of treatment and believes the information that she has
been told) because the treatment under consideration was narrowly construed by
the Chief Psychiatrist, both doctors delivered a ‘snapshot’ appraisal of ER’s
capacity. In particular, their evidence did not satisfy the Tribunal that ER
satisfies the third limb in the test for capacity, that is (applying the ACT Health
Consent Procedure) whether the person can make a judgment based on the
information, or on the ADACAS test (blending steps 3-4), whether the person
can weigh up the benefits or consequences of the options to make a decision
about the problem. In particular, their evidence did not satisfy the Tribunal that
ER can weigh up information to make a choice over the relevant period required
to make a decision about psychiatric treatment. Although both Dr Wurth and
Dr Kasinathan thought that ER was sufficiently capable of weighing up the
information to make a choice,110
this view was belied by circumstances that
panned out over the duration of the hearing. This is discussed in more detail
when the evidence about the relapse in April 2014 is considered.
101. In relation to the lay evidence, the Tribunal agrees with the submissions made
by the Chief Psychiatrist that Ms Bolton’s report does not assist the Tribunal.
However, the Tribunal agrees with the submission made by the Public Advocate
that Mr Leahy had cared for ER for 9 years by the time of the hearing and
107 Transcript of Proceedings 10 May 2013 pages 42-43 108 Transcript of Proceedings 10 May 2014 page 41 109 Transcript of Proceedings 10 May 2013 page 40-41 110 Transcript of Proceedings pages 19- 20 and 25 and 10 May 2013 pages 16-17 and 64; Chief
Psychiatrist submissions dated 20 February 2013 at [20]
provided insight into ER’s level of functioning. Mr Leahy’s view that ER was
unaware why she took the medication should be given weight because of his
familiarity with ER. Courts and tribunals frequently rely upon the evidence of
persons who are familiar with people who have impaired decision-making when
making assessments about their capacity.111
Side Effects
102. There was evidence that ER has suffered side effects from the medication112
but
they appear to be properly managed. Dr Thompson mentioned neuroleptic
malignant syndrome (NMS) was a side effect of certain antipsychotics but
Dr Kasinthan and Dr Wurth both stated that this condition was a side effect of
the first generation psychotropics and that ER is not currently taking a first-
generation anti-psychotic drug.113
Further, they testified that the incidence of
NMS is very, very low. The Tribunal is satisfied with this explanation.
103. There was some uncertainty about whether the neck protrusion which ER
suffered in April 2013 was a side effect of Epilim. There was no evidence that
any person had explained to ER that this is a side effect of the medication. Dr
Thompson was of the view that ER should be told about the side effects but she
would not understand them.114
104. The Tribunal considers that the evidence about ER’s understanding of the side
effects is equivocal and does not assist to rebut the presumption of capacity.
Assessing the Evidence About ER’s Capacity II - The Relapse in April 2014
105. Pivotal to the Chief Psychiatrist’s case was that ER’s capacity may improve
over time particularly if she was given the right support to learn about her
medication. The Chief Psychiatrist contended that ER’s relapses have been rare.
However, ER was hospitalised from October 2008 to July 2009, from
10 April 2012 to 7 June 2012 and from 17 April to 14 July 2014. The Public
111 O'Neill and Peisah page 52 112 Report of Dr Wurth dated 10 October 2013; report of Dr Wurth dated 5 April 2013 and
Transcript of Proceedings 10 May 2013 pages 54-55 113 Transcript of Proceedings 9 May 2013 page 85 at Line 20-45; Transcript of Proceedings 10
May 2013 page 3 114 Transcript of Proceedings 9 May 2013 page 51
Advocate argued that the periods of hospitalisation were lengthy and becoming
more frequent.115
106. The Chief Psychiatrist recognised that ER relapsed in March – April 2012 when
carers did not recognise the early warning signs of her becoming unwell despite
them building up about 3 weeks before her relapse. Dr Wurth gave evidence
that he thought this was due to a failure of staff rather than a failure of the
protocol itself.116
Dr Kasinathan thought ER might have some very limited
capacity to recognise a need for a change in treatment and understand and
identify to her carers that she is not well and may need to see Dr Wurth for a
change of medication. He thought she would be able to understand in a scenario
where her carers noticed a deterioration and told ER she needed to change her
medication. Dr Wurth said it was possible that ER would maintain capacity
even where there were early signs of relapse and that it would be a matter of
clinical judgement at what point in the progression towards relapse that ER
might lose her capacity. The Chief Psychiatrist submitted that email trails by her
carers on 22-24 April 2013117
are an example of effective and appropriate
resolution of an episode where ER’s capacity may have fluctuated. It was
further submitted by the Chief Psychiatrist that effective collaboration between
her carers, Disability ACT and MHS-ID, meant that very early warning signs
were reported to Dr Wurth who ordered reinstatement of ER’s previous dose of
Epilim with apparent success.118
Conversely, the Public Advocate argued that it
is apparent from the relapses that ER is unable to retain the information and/or
unable to weigh the consequences of not accepting treatment.
107. The Public Advocate argued that before the April 2014 hospital admission there
was no evidence of early warning signs or recognition by support workers that
would indicate to them that ER was about to ‘relapse’. Similarly, argued the
Public Advocate, there were no early warning signs in relation to ER’s 2012
hospital admission although retrospectively it was contended there had been
‘early warning signs’ from March 2012. But these early warning signs had not
led to any preventative action.
115 Public Advocate submissions dated 20 November 2014 at [5] 116 Chief Psychiatrist submissions dated 2 August 2013 at [20]; Transcript of Proceedings 10 May
2013 page 67 117 Exhibit PA 8 118 Chief Psychiatrist submissions 2 August 2013 at [20]
108. The evidence about ER’s relapse in April 2014 indicates that support workers
were ‘unable to identify any trigger socially or medically’ for her relapse and
that she had suddenly become ‘aggressive and erratic.’119
When ER was
examined after her hospital admission on 17-18 April 2014, there was evidence
of sub-therapeutic levels of her medication,120
including her antipsychotic
medication. ER made a statement to Dr Wurth that she was ‘throwing away her
tablets at home’.121
Although there was ultimately no satisfactory explanation as
to why ER’s medication levels were sub-therapeutic, an email by a co-worker
dated 26 May 2014 concluded that ER had only missed one dose and ER may
have discarded that dose in the evening of Wednesday 16 April 2014.122
Dr Wurth’s report of 2 May 2014 considered that the relapse might have been
due to stress because there had been considerable tensions in the house. He also
considered a possible contribution by an earlier reduction in the prescribed
Zyprexa dosage. The report of the Public Advocate of 8 July 2014 also refers to
tensions arising from alleged inappropriate conduct by a worker which ER may
have felt pressure to conceal. ER’s carer was of the view that the absence of
certain workers over numerous weeks had had a cumulative impact contributing
to ER’s deterioration.123
109. The Chief Psychiatrist argued that even if ER had discarded some tablets, she
had been exhibiting escalating early warning signs of mania for at least 2 days
before 16 April 2014. The Chief Psychiatrist invited the Tribunal to find that
any disposal by ER of her tablets on the Wednesday evening 16 April 2014 was
the result of manic deterioration and not the trigger of her relapse. The Chief
Psychiatrist argued that:
Her uncharacteristic disposal of the tablets would be consistent with ER’s
capacity having deteriorated from its usual level as a result of mania
rather than being evidence that ER never had capacity in the first
place.124
110. The Tribunal does not accept this submission because the presence of sub-
therapeutic levels of antipsychotics is consistent with a break in the very
119 Public Advocate submissions dated 20 November 2014 at [11] 120 Report of Dr Dasgupta dated 1 May 2014 121 Public Advocate submissions dated 20 November 2014 at [12] 122 Chief Psychiatrist submissions dated 7 November 2014 123 Email from Ms Lynch to the Public Advocate dated 16 May 2014 124 Chief Psychiatrist submissions dated 7 November 2014 at [9]
structured supported environment in which ER received psychiatric treatment.
This coincided with ER becoming unwell. There is insufficient evidence to
determine why the medication was at sub-therapeutic levels, but it is clear that
ER was becoming unwell before 16 April 2014. The evidence is consistent with
ER not retaining information about the therapeutic effects of the medication and
the need for continuity of her receipt of it and/or her being unable to weigh the
consequences of not receiving treatment. Unfortunately, it appears that there
was a failure in the provision of structured treatment in the house which meant
that ER was exposed to a breakdown in the continuity of her psychiatric
treatment. The Tribunal does not accept the Chief Psychiatrist’s explanation that
ER’s relapse was entirely unpredictable because it is plausible that non-
adherence to medication (albeit unexplained) led to her becoming unwell. If ER
was able to fully weigh up the consequences of not receiving psychiatric
treatment she may have communicated or acted somehow to circumvent the
situation. Although the Tribunal recognises that some of the evidence suggests
an alternative hypothesis e.g. that ER did not act or communicate because she
was under pressure to conceal conduct, the lack of action or communication is
more consistent with the proposition that ER was becoming unwell due to sub-
therapeutic levels of medication but she acquiesces in or ‘goes along’ with the
suggestions made by her health professionals rather than weighing up the
information she has been given, even if that involved her not receiving
psychiatric treatment.
111. In this regard, the Tribunal adopts the same reasoning in relation to the report of
Dr Ratnyake dated 7 October 2014125
where the doctor relied upon the
information provided by ADACAS et al ‘that ER is able to make decisions if
she is well and with the correct support in place’. The Tribunal considers that
Dr Ratnyake placed too much weight upon the material about the supported
decision-making project when making a judgement about ER’s capacity to
consent to psychiatric treatment. The Tribunal will discuss the supported
decision-making project below.
125 Report of Dr Ratnayake dated 7 October 2014
Assessing the Evidence About ER’s Capacity III - ADACAS Trial of
Supported Decision-Making September 2014
112. ER participated in a supported decision-making (SDM) trial with ADACAS in
September 2014. ADACAS, the Chief Psychiatrist and AFI submitted that this
report demonstrated that SDM could enhance ER’s understanding of the need
for medication and aid her retention of information.126
It was also argued that
ER had a greater desire to learn more about her medication and showed her
ability to make choices about what she eats and what she wears.127
113. The Public Advocate urged a high degree of caution about extrapolating from
the findings of the SDM trial due to its extremely limited scope and depth and
‘apparent subjectivity’.128
The Tribunal acknowledges some of the Public
Advocate’s concerns about the limited scope of the SDM trial and therefore
concludes that the trial does not demonstrate that ER has the capacity to weigh
up consequences as required by the third limb of the test for the full ambit of a
psychiatric treatment decision which is discussed above.
114. However the Tribunal considers that the SDM report is valuable evidence of
ER’s capacity to accept support in her decision-making. For example, the
submission by AFI points to the fact that ER desires to ask questions and learn
more about her medication and that ER accepts decision-making supports in
regards to her treatment such as verbal prompts and visual aids such as her
Webster pack to retain and consider information. The AFI submission points to
the Public Advocate’s file note of 30 September 2014 which indicates that ER
sought access to her Webster pack without prompting as a visual aid to help
articulate the difference between the medications prescribed by Dr Davies and
Dr Wurth. AFI used this observation to comment that:
Any concerns about ER’s capacity to retain and weigh information in
regards to her treatment should be addressed by the introduction of
sustainable, ongoing supports for ER to retain and consider the relevant
information. The ADACAS report indicates that ER benefited from
decision-making supports although the support offered was very short
term, while ER’s psychiatric and intellectual impairments are recognised
as ongoing. Advocacy for Inclusion is of the view that ER would benefit
126 Chief Psychiatrist submissions dated 7 November 2014, ADACAS submissions dated 5
December 2014 at page 6, AFI submissions dated 4 December 2014 127 ER Participation in ADACAS Supported Decision-making Project filed 26 November 2014 128 Report of Sue Houghton from the Public Advocate dated 7 October 2014
from ongoing informal supports to enhance the existing decision-making
capacity and that these supports should be put in place upon ER’s
consent.129
115. The Tribunal concurs with this recommendation and notes that it is significant
in terms of the new regime for decision-making under the amendments to the
Mental Health Act that will come into force next year. The Tribunal will make a
short comment about that regime below.
CONCLUSION ON THE EVIDENCE OF CAPACITY
116. The Tribunal concludes that the evidence establishes that ER does not have
capacity to recognise early warning signs or in other ways act to secure
treatment independently of the regime that is established by the supported
environment in which she lives and this finding rebuts the presumption of
capacity because the third limb of the test of capacity is not satisfied.
THE FUTURE – AMENDMENTS TO THE MENTAL HEALTH ACT
117. Amendments to the Mental Health Act pursuant to the Mental Health
Amendment Act which are due to come into force in March 2016 mean that a
guardian will be able to give consent for treatment of mental illness in certain
circumstances. The relevant legislation is set out in Schedule 8 below. Pursuant
to the new section 70A of the Guardianship Act, a guardian has the power to
give for a person the consent required for medical treatment, care or support
under the Mental Health Act if the person does not have decision-making
capacity under the Mental Health Act (and does not have an advance consent
agreement authorising treatment) and expresses willingness to receive the
treatment. These circumstances would be satisfied in the present case although
the Tribunal has found that ER lacks capacity to consent to psychiatric
treatment. As discussed above, the Tribunal found that ER satisfied the first two
limbs of the capacity test by the evidence that she understands the nature and
purpose of psychiatric treatment (albeit in the short term) and believes the
information that she is told. The evidence that ER expressed willingness to
receive treatment was uncontroverted.
118. The Tribunal notes the principles of decision-making under the new section 8 of
the Mental Health Act and does not consider that ER merely complies with the
129 AFI submissions dated 4 December 2014
provision of treatment care or support, rather the evidence indicates that she has
expressed her willingness to receive treatment which is likely to satisfy the
requirements under the new section 70A of the Guardianship Act.
119. The parties made submissions about ER’s capacity to make an advance consent
direction or an advance directive.130
The Tribunal does not make any findings
about ER’s capacity to make an advance directive.
CONCLUSION
120. The Tribunal has concluded that the appointment of a guardian does not of itself
mean that ER cannot give lawful consent to psychiatric treatment from time to
time. However, the Tribunal has found as a matter of fact that ER does not have
capacity to consent to psychiatric treatment from time to time. Although she has
expressed willingness to receive psychiatric treatment and understands the
treatment in the short term and believes what she is being told, she is not able to
retain and weigh the information to make a choice about psychiatric treatment
from time to time. Therefore, although the Tribunal concludes that the answer to
the question of law is ‘no’, the evidence establishes that the answer to sub-
question 1 is also ‘no’ and an interpretation of the provisions in sub-question 2
do not disturb the finding referred to in sub-question 1.
………………………………..
Professor P. Spender,
Presidential Member
For and on behalf of the Tribunal
130 See for example HRC submissions dated 25 January 2013 at [25]-[33]; ADACAS submissions
dated 25 January 2013 page 4; Chief Psychiatrist submissions dated 20 February 2013 at [12]-[14]
SCHEDULE 1 – CURRENT LEGISLATION
ACT Civil and Administrative Tribunal Act 2008
77 Referral of questions of law within tribunal
(1) This section applies if a tribunal (the requesting tribunal) is dealing with
an application.
(2) However, this section does not apply to an application for review of a
decision under the Heritage Act 2004, the Planning and Development Act
2007 or the Tree Protection Act 2005.
(3) The requesting tribunal may, on its own initiative or on application by a
party, ask the appeal president to allocate 1 or more tribunal members to a
tribunal (the ruling tribunal) to give a ruling on a question of law.
(4) If the ruling tribunal gives a ruling on a question of law, the requesting
tribunal is bound by the ruling.
Note Question of law includes whether a question is a question of law (see dict).
(5) A ruling tribunal is made up of 1 or more of the following tribunal
members allocated by the appeal president:
(a) a presidential member;
(b) a senior member who is a lawyer and has been a lawyer for 5 years or
more.
(6) However, a ruling tribunal must not contain a tribunal member allocated to
the requesting tribunal.
Guardianship and Management of Property Act 1991
5 When does someone have impaired decision-making ability?
For this Act, a person has impaired decision-making ability if the person’s
decision-making ability is impaired because of a physical, mental,
psychological or intellectual condition or state, whether or not the
condition or state is a diagnosable illness.
7 Appointment and powers of guardians
(1) This section applies if the ACAT is satisfied that—
(a) someone has impaired decision-making ability in relation to a matter
relating to the person’s health or welfare; and
(b) while the person has the impaired decision-making ability—
(i) there is, or is likely to be, a need for a decision in relation to the
matter; or
(ii) the person is likely to do something in relation to the matter that
involves, or is likely to involve, unreasonable risk to the
person’s health, welfare or property; and
(c) if a guardian is not appointed—
(i) the person’s needs will not be met; or
(ii) the person’s interests will be significantly adversely affected.
Note 1 See s 8C in relation to appointment of a guardian for a child.
Note 2 A person’s needs may be met, or the person’s interests protected, under an
enduring power of attorney (see Powers of Attorney Act 2006).
(2) The ACAT may, by order, appoint a guardian for the person, with the
powers that the ACAT is satisfied are necessary or desirable to make
decisions for the person in accordance with the
decision-making principles.
Note The powers that may be given to a guardian are restricted under s 7B.
(3) The powers that may be given to a person’s guardian include the following
powers:
(a) to decide where, and with whom, the person is to live;
(b) to decide what education or training the person is to receive;
(c) to decide whether the person is to be allowed to work;
(d) if the person is to be allowed to work—to decide the nature of the
work, the place of employment and the employer;
(e) to give, for the person, a consent required for a medical procedure or
other treatment (other than a prescribed medical procedure);
(f) to bring or continue legal proceedings for or in the name of the
person.
7B Restriction on powers of guardians
The powers that may be given to a person’s guardian do not include the
power to discipline the person or the power to do any of the following
things for the person:
(a) vote in an election;
(b) make a will or other testamentary instrument;
(c) consent to the adoption of a child;
(d) give a consent to a marriage or civil union;
(e) give a consent required for a prescribed medical procedure for the
person.
prescribed medical procedure means—
(a) an abortion; or
(b) reproductive sterilisation; or
(c) a hysterectomy; or
(d) a medical procedure concerned with contraception; or
(e) removal of non-regenerative tissue for transplantation to the body of
another living person; or
(f) treatment for mental illness, electroconvulsive therapy or psychiatric
surgery; or
(g) any other medical or surgical procedure prescribed for this definition.
Human Rights Act 2004
10 Protection from torture and cruel, inhuman or degrading treatment
etc
(1) No-one may be—
(a) tortured; or
(b) treated or punished in a cruel, inhuman or degrading way.
(2) No-one may be subjected to medical or scientific experimentation or
treatment without his or her free consent.
12 Privacy and reputation
Everyone has the right—
(a) not to have his or her privacy, family, home or correspondence
interfered with unlawfully or arbitrarily; and
(b) not to have his or her reputation unlawfully attacked.
13 Freedom of movement
Everyone has the right to move freely within the ACT and to enter and
leave it, and the freedom to choose his or her residence in the ACT.
18 Right to liberty and security of person
(1) Everyone has the right to liberty and security of person. In particular, no-
one may be arbitrarily arrested or detained.
(2) No-one may be deprived of liberty, except on the grounds and in
accordance with the procedures established by law. ...
30 Interpretation of laws and human rights
So far as it is possible to do so consistently with its purpose, a Territory
law must be interpreted in a way that is compatible with human rights.
40B Public authorities must act consistently with human
rights
(1) It is unlawful for a public authority—
(a) to act in a way that is incompatible with a human right; or
(b) in making a decision, to fail to give proper consideration to a
relevant human right. ...
Mental Health (Treatment and Care) Act 1994
26 What ACAT must take into account
In making a mental health order in relation to a person, the ACAT
must take into account the following:
(a) whether the person consents, refuses to consent or has the
capacity to consent, to a proposed course of treatment, care or
support;
(b) the views and wishes of the person, so far as they can be found
out;
(c) the views and wishes of the people responsible for the day-today
care of the person, so far as those views and wishes are
made known to the ACAT;
(d) the views of the people appearing at the proceeding;
(e) the views of the people consulted under section 25;
(f) that the person’s welfare and interests should be appropriately
protected;
(g) that the person’s rights should not be interfered with except to
the least extent necessary;
(h) that the person should be encouraged to look after himself or
herself;
(i) that, as far as possible, the person should live in the general
community and join in community activities;
(j) that any restrictions placed on the person should be the
minimum necessary for the safe and effective care of the
person;
(k) the alternative treatments, programs and other services
available, including—
(i) the purposes of those treatments, programs and services;
and
(ii) the benefits likely to be derived by the person from those
treatments, programs and services; and
(iii) the distress, discomfort, risks, side effects or other
disadvantages associated with those treatments, programs
and services;
(l) any relevant medical history of the person;
(m) the religious, cultural and language needs of the person;
(n) for a person referred to the ACAT under section 13 or an
offender with a mental impairment—the nature and
circumstances of the offence in relation to which the person
has been arrested, or may be or has been charged;
(o) for an offender with a mental impairment—the nature and
extent of the person’s mental impairment, including the effect
it is likely to have on the person’s behaviour in the future;
(p) for an offender with a mental impairment—whether or not, if
the person is not detained—
(i) the person’s health or safety is, or is likely to be,
substantially at risk; or
(ii) the person is likely to do serious harm to others;
(q) anything else prescribed under the regulations for this section.
28 Criteria for making psychiatric treatment order
The ACAT may make a psychiatric treatment order in relation to a
person if—
(a) the person has a mental illness; and
(b) the ACAT has reasonable grounds for believing that, because
of the illness, the person is likely to—
(i) do serious harm to himself, herself or someone else; or
(ii) suffer serious mental or physical deterioration;
unless subject to involuntary psychiatric treatment; and
(c) the ACAT is satisfied that psychiatric treatment is likely to
reduce the harm or deterioration (or the likelihood of harm or
deterioration) mentioned in paragraph (b) and result in an
improvement in the person’s psychiatric condition; and
(d) the treatment cannot be adequately provided in a way that
would involve less restriction of the freedom of choice and
movement of the person than would result from the person
being an involuntary patient.
33 Treatment to be explained
(1) Before treatment is given to a person under a psychiatric treatment
order, the chief psychiatrist must explain to the person the nature
and effects (including any side effects) of the treatment.
(2) The explanation must be given in the language or way of
communicating that the person is most likely to understand.
SCHEDULE 2 – LIST OF THE PARTIES’ SUBMISSIONS
AND OTHER MATERIAL
08/12/2014 Submissions of Chief Psychiatrist in reply to new matters
05/12/2014 Response to additional material by ADACAS dated 5 December 2014
04/12/2014 Submission on additional evidence of AFI dated 4 December 2014
20/11/2014 Submission in response by Public Advocate filed 20 November 2014
07/11/2014 Submissions by Chief Psychiatrist on additional evidence dated 7 November 2014
24/10/2014 Submissions by the Public Advocate in relation to further evidence dated 24 October 2014
10/10/2014 Supplementary Psychiatric Report of Dr P. Ratnayake dated 7 October 2014
07/10/2014 Report filed by the Public Advocate (authored by Ms Houghton) dated 7 October 2014
26/09/2014 Report about ER participation in ADACAS by ADACAS dated 26 September 2014
15/09/2014 Multiple reports filed by the Public Advocate
22/11/2013 CV of Dr Wurth dated 22 November 2011
11/11/2013 Further evidence by Public Advocate dated 11 November 2013
29/08/2013 Dr Wurth's report dated 29 August 2013
02/08/2013 Closing submissions by Chief Psychiatrist dated 2 August 2013
05/07/2013 Closing submissions by AFI dated 4 July 2013
05/07/2013 Closing submissions by HRC dated 5 July 2013
14/06/2013 Closing submissions by Public Advocate dated 14 June 2013
03/06/2013 Closing submissions by MHS-ID and Disability ACT dated 3 June 2013
31/05/2013 Closing submissions by Chief Psychiatrist dated 31 May 2013
23/04/2013 Affidavit by Tammy Bolton dated 22 April 2013
22/02/2013 Witness statement by Phillip Leahy dated 22 February 2013
22/02/2013 Witness statement by Tammy Bolton dated 22 February 2013
20/02/2013 Reply by Chief Psychiatrist dated 20 February 2013
13/02/2013 Dr Wurth's Letter to Ms Knowles dated 13 February 2013
08/02/2013 Reply by Public Advocate dated 8 February 2013
25/01/2013 Submissions by ADACAS dated 25 January 2013
25/01/2013 Submissions by HRC dated 25 January 2013
18/01/2013 Statement of Facts and Contentions by Public Advocate dated 18 January 2013
14/12/2012 Report by Dr Thompson dated 29 November 2012
02/12/2012 Joint submissions of ADACAS and AFI dated 2 December 2012
30/03/2012
Statement of Facts and Contentions of Chief Psychiatrist and report of Dr Kasinathan dated
30 March 2012
22/03/2012 Report by Dr Wurth dated 22 March 2012
SCHEDULE 3 - ACT HEALTH - CONSENT TO
TREATMENT - PROCEDURE CED 09-007
7.3 Three clinical tests for competency
For adults over 18 years an assessment of competence should involve three aspects:
1 - Does the person understand?
2 - Does the person believe what they are being told?
3 - Can the person make a judgment based on this information?
1. Relevant treatment information is understood and retained
To test for belief (or appreciation):
• tell me what you really believe is wrong with your health now?
• do you believe that you need some kind of treatment?
• what is the treatment likely to do for you?
• why do you think it will have that effect?
• what do you believe will happen if you're not treated?
• why do you think the doctor has recommended this treatment for you?
2. Information or advice is believed
To test for belief:
• tell me what you really believe is wrong with your health now?
• do you believe that you need some kind of treatment?
• what is the treatment likely to do you to you?
• why do you think it will have that effect?
• what do you believe will happen if you're not treated?
• who to you think the doctor has recommended this treatment for you?
3. Information is 'weighed' to arrive at a choice
To test for reasoning and choice:
• tell me how you reached the decision to accept (reject) treatment?
• what things were important to you in reaching the decision?
• how do you balance those things?
• have you decided whether to go along with your doctor's/ health professional's
suggestion for treatment?
7.4 Assessing competency when communication is impaired
The tests described above cannot be used to assess patients with a communication
impairment that compromises their ability to either:
• process verbal/written information, or
• express themselves verbally or in writing
SCHEDULE 4 –EXPERT EVIDENCE
Dr Jennifer Thompson
1. Dr Jennifer Anne Thompson, a private psychiatrist, prepared a report in relation
to ER dated 29 November 2012.
2. Dr Thomson has been practising as a psychiatrist since 1971. She had 10 years’
experience on the Mental Health Review Tribunal in New South Wales and was
Medical Superintendent for 15 years at Macquarie Hospital but does not
specialise in treating patients with dual disability at the moment.
3. Dr Thompson’s report was described as an assessment of ER. Dr Thompson
also gave oral evidence. Her evidence is set out in summary form below:
a. the report was prepared following an interview conducted on
20 September 2012.
b. ER was able to describe accurately and with some detail her daily
routine, where she lived, who she lived with and where she worked;
c. ER understood that she had been in Canberra Hospital and she knew
she had been there so the ‘hospital could make her better’.131
ER knew
the names of her doctors.
d. ER understood that she was taking medication, that she must take the
medication to ‘get better and not go to hospital’, but did not know
what medication she was taking or what each medication treated. ER
had very little insight. ER did not know what kind of illness she had or
really what happened in hospital or why she had been in hospital.132
e. Dr Thompson concluded ‘[that ER’s] mental illness is adequately
controlled at present with medication and the care she is receiving in
the Group Home’. However, ER’s mental illness is unpredictable, and
events such as staff changes, changes in staff attitude, premenstrual
tension, physical illness, changes of routine or staff absences may
result in ER becoming disturbed and a requirement for increased
medication. When this happens, [ER] ‘is not aware that she has
become disturbed, she is not aware of the need for increased
131 Transcript of Proceedings 9 May 2013 page 45 lines 30-45 132 Transcript of Proceedings 9 May 2013 page 47 lines 40-45
medication, and it appears that staff has waited some weeks before
reporting disturbance and by that time she requires hospitalisation.’133
f. In relation to ER’s capacity to consent to psychiatric treatment
Dr Thompson’s opinion was:
i. that ER does not understand the nature of her illness;134
ii. that ER does not understand the need for psychiatric treatment.
She has been told repeatedly that she must take her medication
to ‘get better’ and not go to hospital. She knows she does not
like hospital or ECT. She is used to taking medication and she
trusts the staff so she takes the tablets when offered. She does
not ask for her tablets if they are late, she has objected to
taking more [medication] than she usually is given, and she is
not aware that her behaviour has become disturbed and she
may need more medication;135
iii. that ER has no understanding of how the treatment assists her
apart from keeping her well and not in hospital;136
and
iv. ER takes medication when offered, does not object to taking
medication but would not take the tablets if they were not
offered to her. ER takes the medication because it is offered to
her. ER would not be aware of the need to increase or alter her
medication in circumstances where her health had
deteriorated.137
v. ER does not have capacity to consent to mental health
treatment. In her oral evidence Dr Thompson stated that ER
has very little insight; did not know what kind of illness she
has, or really what had happened or why she was in hospital.138
vi. For so long as ER was given the ‘Rolls Royce’ treatment that
she is getting, it was unlikely that a situation would occur
where the medication would not be administered to her. Dr
Thompson reiterated her view that ER would not take her
133 Report dated 29 November 2012 page 8 at [1] 134 Report dated 29 November 2012 page 8 at (d) 135 Report dated 29 November 2012 page 8 at (d) 136 Report dated 29 November 2012 page 8 at (d) 137 Report dated 29 November 2012 page 8 at [1] and (d) 138 Transcript of proceedings 9 May 2013 page 47 at lines 40 to 45
medication on her own volition, did not understand what the
medication specifically treated and would not recognise or
understand the side effects of the medication or that a
deterioration in her health might indicate a need to alter the
medication.139
4. Dr Thompson gave evidence that ER had a history of developing neuroleptic
malignant syndrome (NMS). This was described as a very severe side-effect of
anti-psychotic medication and is life-threatening if it develops. NMS is a known
side effect of Olanzapine and this medication that has been administered to ER.
Dr Thompson noted that this was an extremely rare condition. In cross-
examination Dr Thompson conceded as far as she was aware ER had not
suffered from an episode of NMS on her current medication. Dr Thompson also
gave evidence that the side-effect of Epilim (sodium valproate) was neck
protrusion and generally stooped posture. Epilim is also a medication which is
administered to ER. Dr Thompson was of the view that ER should be told about
the side-effects but she would not understand them.
Dr John Kasinathan
5. Dr Kasinathan is a consultant forensic psychiatrist. Dr Kasinathan gave
evidence that as a consultant forensic psychiatrist he was often called upon to
assess patients’ capacity including the capacity to refuse or accept psychiatric
treatment and that he has over five years’ experience in this area. He conducted
a psychiatric assessment of ER on 29 February 2012 at her home. The interview
was 50 minutes in duration and in the company of her Disability Support
Officers. The assessment was undertaken at the request of the Chief Psychiatrist
to provide an independent opinion on ER’s capacity to consent to psychiatric
treatment. Dr Kasinathan provided a written report dated 29 February 2012
6. Dr Kasinathan conducted a further interview with ER on 29 August 2012 at the
premises of Mental Health ACT and has provided an updated psychiatric
opinion based on that second interview.
7. He noted that ER is a 52-year-old Caucasian Australian female with mild to
moderate intellectual disability and bipolar disorder in remission. She had been
139 Transcript of Proceedings 9 May 2013 pages 68 to 69
psychiatrically well at the time of the examination for at least the previous
12 months and her last psychiatric admission was over two years ago when she
was acutely unwell and required ECT.
8. In relation to her medication, Dr Kasinathan stated that ER independently stated
that she was on lithium carbonate but was unable to volunteer the names of her
other medications. ER displayed insight in that she found her psychiatric
medication helpful and that it kept her well.140
ER was unable to state exactly
the name of her mental illness, however she was able to identify that she had
depression.
9. Dr Kasinathan stated it should be noted that a person having intellectual
disability does not automatically negate capacity for all areas of decision
making. Specific assessment of capacity for the particular area of decision-
making needs to be undertaken as an individual’s capacity in one area (e.g.
financial management) may be very different to their capacity in another area
(e.g. forming a consensual romantic relationship).141
10. Dr Kasinathan considered three factors as impacting on the ability of a person to
make a decision:
a. Relevant treatment information is understood and retained: ER
believed strongly that her medication helped her to get better and that
she needed to continue the treatment. Dr Kasinathan stated that when
he asked ER what would happen if she did not receive treatment she
replied ‘I’d get sick, it wouldn’t be a good thing’.
b. Information or advice is believed: ER ‘completely believed’ the
information and advice that her treating doctors had given her. She
was unable to state exactly what her mental illness was called, but she
firmly believed that had treatment kept her well and would continue to
keep her well.
c. Information is weighed to arrive at choice: ER’s capacity to weigh
information may be limited. However, when asked why she had
decided to accept her treatment she replied ‘I don’t think I should stop
140 Report dated 29 February 2012 page 2 141 Report dated 29 February 2012 page 3
or not take my meds’. She elaborated that she did not want to get sick
again. ER decided to go along with her doctors’ recommendation for
treatment because she trusts her doctors.142
11. In the report dated February 2012 Dr Kasinathan concluded that: ER
demonstrated more than partial capacity for informed consent for psychiatric
treatment. She exhibited implied consent, fully cooperative with medication
without any dissent or refusal in the last two years. Therefore, she possesses at
least partial capacity to consent to treatment. In summary, ER has capacity from
time to time to consent to psychiatric treatment.143
12. In the report dated 29 August 2012, Dr Kasinathan stated that ER’s diagnosis
and capacity to consent had not changed since February 2012 and he concluded
that, in essence, [ER] has capacity from time to time to consent to psychiatric
treatment.144
13. In oral evidence Dr Kasinathan indicated that when he saw the ER she was not
experiencing any side-effects from the medication and that he had not observed
neck protrusion, stooping, or any weight problem in ER. Dr Kasinathan also
indicated that ER had a very small risk of developing NMS. He stated that this
was a very rare side-effect of first generation anti-psychotic drugs. He noted that
ER was not currently taking a first generation anti-psychotic drug.
Dr Kasinathan stated that the incidence of NMS is very, very low, particularly
with the doses that ER is taking.145
14. Dr Kasinathan indicated that during the interviews conducted prior to the
writing of his reports, ER had answered his questions and he stated that she had
responded in a manner commonly held by most patients the mild to moderate
intellectual disability. He indicated that ER understood that she was taking
lithium carbonate and that she expressed the opinion that her medication helped
her to get better and helps her stay well.
15. Dr Kasinathan further stated that ER had understood what an illness was. She
had recognised that she had been sick before from this illness, and that she had
142 Report dated 29 February 2012 page 2 143 Report dated 29 February 2012 page 4 144 Report dated 29 August 2012 page 4 145 Transcript of Proceedings 9 May 2013 page 85 at lines 20 -45
been in hospital. ER recognised that the medication had helped her to get better
and she understood that she needed to continue taking her medication.
Dr Kasinathan described ER’s ability to understand that some medication may
have specific side-effects as ‘limited, but not non-existent’.
16. In oral evidence Dr Kasinathan indicated that his view was that ER had made a
decision to accept her medication, that she was consenting to treatment and that
that consent was a response to an understanding that she had been unwell and
that the medication had made her better and would keep her well. Dr Kasinathan
stated that from time to time ER may not have capacity to consent to treatment,
but from time to time she definitely does have capacity to consent to treatment.
He stated that when he saw her and interviewed her she definitely did have
capacity to consent to treatment. This capacity must be understood in the
context of the limited capacity of a person with a mild to moderate intellectual
disability, but was nevertheless a real capacity to consent to treatment.146
17. In response to the question: if ER refused to take her medication would your
view be that she now lacked capacity? Dr Kasinathan replied ‘I think her
capacity to consent would need to be reviewed by her treating doctor. … The
fact that she has been compliant for years and now decides ‘No, I don’t want
any more’, that should prompt a psychiatric review, which should prompt a
review by her general practitioner’. …147
Dr Peter Wurth
18. Dr Peter Wurth is a practising psychiatrist in a private practice with a mix of
adult general psychiatry and intellectual disability psychiatry. He has more than
30 years’ experience as a practising psychiatrist and teacher. Dr Wurth has
specific experience in the psychiatry of intellectual disability.
19. Dr Wurth has been ER’s treating psychiatrist since 2009. He stated that he sees
ER frequently, depending on how well she is – a maximum of every month and
a minimum of every six months. The tribunal received evidence in the form of
written reports by him with regards to ER’s treatment and mental state,
commencing from April 2009 to the present.
146 Transcript of Proceedings 9 May 2013 at pages 85-100 147 Transcript of Proceedings 9 May 2013 page 110
20. Dr Wurth gave evidence that ER had had adverse reactions to her medication.
He stated that she had had mild side-effects from medications that he had
prescribed for her since 2009, but that she had had major side-effects from
medications administered prior to that. Dr Wurth stated that the cause of an
early NMS episode was the use of first generation antipsychotic medications in
high doses. It is noted that ER is not currently taking a first generation
antipsychotic medications.
21. Dr Wurth stated that his assessment of the risk to ER from her current
medications was that the risk was very low. He noted that she was now stable
and had long-term doses of medication and that this significantly reduced the
risk of the side-effect of NMS . He further stated that she was not suffering side-
effects such as diarrhoea and nausea from her medication and that she was
regularly monitored in relation to lithium. He did speculate that Epilim may be
contributing to a degree of neck protrusion, a side-effect that ER is
experiencing. Dr Wurth described this as a ‘moderately serious’ side-effect.148
22. Dr Wurth gave evidence that ER had had a manic episode in April 2012, that
she was treated in hospital with adjustments to her existing psychotropic
medications.
23. Dr Wurth stated that ER understands that she has a mental illness – ‘that every
so often she gets sick in the head and that that has in the past required her to go
to hospital. At times she has used the word ‘depression’.’ Dr Wurth stated that
ER understands the difference between a mental illness and a physical illness.149
24. Dr Wurth disagreed with Dr Thompson’s assessment that incidents such as staff
changes, or other change in routine were necessarily triggers of mental health
episodes. Nor did he agree that if ER was not subject to a PTO that he would
not be available for consultations. He noted that if ER is stable she would be
discharged from his service but he would remain available for consultation with
disability staff, her GP and other branches of the ACT mental health service.150
148 Transcript of Proceedings 10 May 2013 page 14 149 Transcript of Proceedings 10 May 2013 pages 19 to 20 150 Transcript of Proceedings 10 May 2013 page 11
25. The totality of Dr Wurth’s evidence demonstrates that he had reviewed his
understanding of ‘capacity to consent to treatment’ and had adjusted his
assessment of ER’s capacity to consent accordingly.
26. In a report dated 18 November 2011 Dr Wurth stated that ER is well and that
her bipolar disorder was in remission. He concluded ‘she therefore does not
have an active mental illness as defined by the Mental Health Act. By the legal
definition therefore, she does not have a mental illness currently. By psychiatric
usage, she has a mental illness in remission, namely bipolar disorder.’ He
commented that ‘the granting of a PTO is a highly restrictive process, and there
is clearly a less restrictive process, whereby [ER] continues to voluntarily take
medication packed in her Webster Pack, and supervised by staff’. He further
commented that ‘she understands that she has been sick. She stated that she got
better because of the medication that I gave her, and she also stated that she
understood the taking this medication keeps her well’. He noted that ER has an
IQ of 55, on the border between mild and moderate intellectual disability and
further that her capacity to weigh information to arrive at a choice is extremely
minimal, and she has no capacity to state how she has arrived at her current
position of accepting medication treatment. He concluded ‘in my opinion
therefore, she continues to demonstrate that she does not have capacity for
informed consent. She does exhibit implied consent… mainly that she passively
co-operates in a process such as taking medication without discussion or formal
consent’.151
27. In a letter dated 5 April 2013 Dr Wurth made the following observations in
relation to ER:
a. that she is becoming increasingly stooped and manifesting a fine
tremor. She is slumped in the chair, leaning to the right, with her neck
protruded. These symptoms may be side-effects of treatment with
Epilim. A cautious withdrawal of Epilim was implemented.
b. that ER had reiterated her understanding that her medication keeps her
well, that if she does not take it she becomes sick, that the type of
sickness is in her mind rather than in her body, and that a consequence
151 Report of Dr Wurth dated 18 November 2011 page 3
of this is that she is likely to have to go to hospital, an outcome she is
very keen to avoid. She continues to demonstrate capacity for a
meaningful degree of consent to her current medication regimen.
28. When asked to explain to the Tribunal why in the past he had concluded that ER
cannot consent to mental health treatment, but in more recent documents
supplied to the tribunal had concluded that she was able to consent, Dr Wurth
replied:
Well the ACT Consent to Treatment policy describes… a high level of
capacity for informed consent which involves the ability to know in
detail the nature of the illness, the names of the medications, the risks
and benefits of the medications, to understand that information and to
believe and to make a decision on the basis of it. … [ER] does not
know all those things but I’ve been informed since that she does have
the capacity to consent on the basis of a lower standard of consent,
partial consent it has been termed, whereby she understands that she
has a mental illness, she understands that medication keeps her well,
she understands that without it she would become unwell and that if
she is unwell she may well have to go to hospital which she would
regard as a negative outcome and that she believes the information
[and] she makes her own decision on that basis to take the medication.
So it’s a question of the standard of consent being considered.152
29. Dr Wurth gave evidence that he had revised his assessment of the ER’s capacity
to consent to treatment following discussions with the Chief Psychiatrist.
30. Dr Wurth gave evidence that ER knew the names of some of the medication she
was taking, but not all of them; that she did not understand their effect or
operation and that she did not know in detail what each medication treated. ER
does not have access to her medication, her medication is administered by staff
at her residence and she is acquiescing or compliant in taking medication.
Dr Wurth stated that when medication was changed ER was informed of the
changes, although the changes were not discussed in any detail with her. He
reiterated his opinion that ER understands that the collection of medication she
is taking is keeping her well.
31. In relation to his statement that ER exhibited ‘implied consent’ Dr Wurth agreed
that implied consent refers to when a patient passively co-operates in a process
without discussion or formal consent but stated that ER ‘has better than implied
152 Transcript of Proceedings 10 May 2013 pages 16-17
consent. As a minimum she satisfies the criteria for implied consent. She is
better than that, consent means she exhibits implied consent every day when she
takes this, but she is capable of more sophisticated discussion than that but not
to the standard required for fully informed consent’.153
32. It is clear from Dr Wurth’s evidence that ER’s capacity to consent should be
viewed in the context of the supported accommodation in which she resides:
and he believes she could be taught to take her medication from the Webster
pack. Dr Wurth stated that if ER were to refuse her medication he would be
concerned that refusal was an early warning sign of a relapse of her bipolar
disorder. Dr Wurth stated that were ER to suffer such a relapse it is unlikely that
she would have capacity to consent to treatment.
153 Transcript of Proceedings 10 May 13 page 36
SCHEDULE 5 - OTHER WITNESSES
Mr Phillip Leahy
1. Mr Phillip Graham Leahy, is a Disability Services Officer who had worked
supporting ER for two years at the time of the hearing. Mr Leahy spoke to a
written statement he had prepared, dated 22 February 2013. His evidence is
summarised as follows:
a. ER resides in a house with one other housemate under 24 hour
supervision by support workers. During the day ER is able to shower
and dress herself with some assistance and she can make her own
breakfast. ER suffers from coeliac disease and is lactose intolerant,
and while she appreciates that some foods will make her ill, she does
sometimes eat food that is not gluten-free.154
ER is able to entertain
herself, watches TV, prepares meals and chooses her own food and
clothing.
b. ER’s medication is administered by a support worker. ER does not
have access to her medication, which is at all times kept in a locked
cupboard. ER is aware that she is taking medication and understands
that the medication makes her feel well. ER understands that she takes
medication for a variety of conditions. ER occasionally asks for her
thyroid medication, which is taken in the mornings.155
c. If ER is taken to her GP she understands why she is visiting the doctor
and is able to converse with the doctor about the reason for the visit.
ER understands that she sees Dr Wurth in relation to her mental illness
and that she sees her GP in relation to other medical complaints. 156
Ms Tammy Bolton
1. Ms Bolton is an Acting Network Coordinator for Disability ACT. Her evidence
is summarised as follows:
154 Transcript of Proceedings 9 May 2013 page 29, lines 20 to 40 155 Transcript of Proceedings 9 May 2013 page 19, lines 10 to 45 156 Transcript of Proceedings 9 May 2013 page 36, lines 20 to 45
a. On 17 August 2012 she met with ER and carried out a Personal
Outcome Measures (POMS) interview. The interview was conducted at
ER’s residence.
b. A POMS conversation involves the assessor having a conversation
with the person, speaking with their support workers, drafting a report,
going through the report with the person before it is finalised and
feeding the report back to the person and their support workers or
carers.
c. The report was completed and read out to ER, who did not raise any
issues.
d. In relation the matters of mental health and medication the report
shows that ER is supported in relation to her health needs. ER stated
that she did not know why she takes her medications and she would
like to know more about her medications.
SCHEDULE 6 – EVIDENCE REGARDING THE
RELAPSE IN APRIL 2014 AND ER’S MENTAL STATE
MID-LATE 2014
In April 2014 ER was admitted as an inpatient at the Adult Mental Health Unit
(AMHU) of the Canberra Hospital following a relapse of her bipolar disorder. On 8
May 2014 the tribunal (sitting in the Mental Health Division) granted a six-month
PTO in respect of ER. ER was discharged on 4 July 2014. The tribunal that made the
PTO requested a report about ER’s relapse.
The following evidence was received from the parties in the present matter pursuant
to orders made by the Tribunal on 12 September 2014 regarding the circumstances
surrounding the relapse and ER’s mental state in mid-late 2014.
1. Clinical notes prepared by Dr Rama Das Gupta and dated 1 May 2004. The
notes state that ER has had a relapse of her bipolar illness due to non-adherence
to medication.157
It is noted that ER insisted that she had always been compliant
and has always taken all of her tablets, but the clinical notes indicate that,
considering the low lithium and Epilim levels on admission, it is likely that this
information is not necessarily accurate. It is further noted that ER is at risk of
accidental self harm and harm to others through misadventure, non-adherence to
treatment and worsening of her current mental and physical state.158
2. A letter from Dr Peter Wurth to ER’s GP dated 2 May 2014. This letter is a
report of a consultation conducted on 1 May 2014. That report notes that ER’s
lithium level was found to be 0.2, and her valproate level was low at 81. ER has
apparently admitted to throwing out her tablets, both at the group home and at
hospital. There is however, considerable uncertainty as to whether she has said
that she has thrown out medications at home. It appears that a number of doses
may have been omitted.159
Dr Wurth notes that there was apparently significant
tension within the house and that warning signs may have been missed by carers
and staff.
157 At page 1 158 At page 2 159 At page 1
3. An email dated 6 May 2014 from the Public Advocate of the ACT to the Mental
Health Division of ACAT. The email notes that ER has been an inpatient in
AMHU) at the Canberra Hospital since 18 April 2014, following a relapse
(manic episode) of her bipolar disorder. The email states that this is attributed to
non-adherence to psychotropic medication by the treating psychiatrist at AMHU
and to tension within her household.
4. A letter from Dr Peter Wurth to the Adult Mental Health Unit dated 29 May
2014. This letter concludes that an application should be made to ACAT for
consent to a course of ECT treatment.
5. A report by the Public Advocate to ACAT dated 7 October 2014. This report
was prepared subsequent to ER’s discharge from hospital. The report has
attached to it a letter from Dr Peter Wurth to ER’s GP dated 15 September
2014:
a. It is noted that Dr Wurth has concluded that ER’s bipolar disorder is in
complete remission.
6. A letter addressed to the Mental Health Division of ACAT from the Public
Advocate dated 8 July 2014. This is a report following an investigation of two
specific issues raised in Dr Wurth’s letter dated 2 May 2014:
a. reference to significant tension within the home. It appears that the
behaviour of a worker, a new worker with whom ER was not familiar, may
have contributed to this tension. The worker had behaved inappropriately
in respect of various aspects of her duties and it may be that the worker
had manipulated ER so that ER was uncomfortable with revealing any
issues she had observed in relation to the inappropriate behaviour of the
worker;
b. medication administration and compliance with ER reporting that she had
thrown out her tablets at home and in the hospital. On admission her levels
of Epilim and lithium were found to be some therapeutic. The
investigation appears to conclude that, except for one occasion, ER’s
medication had been properly administered.
7. A supplementary psychiatric report prepared by Dr Ratnayake dated
7 October 2014. This report notes that ER was hospitalised from 11 weeks
following a relapse of bipolar disorder and was discharged in July 2014. The
doctor concluded that ER is currently in remission from bipolar affective
disorder. In relation to her medication, the report states that ER stated that if she
didn’t take her medication, it would make her sick. ER was unable to say why
she was on tablets but clearly stated ‘they make me better’. The report
concludes that ER realises that compliance was important and that non-
compliance would lead to a relapse.160
The report concluded that ER is able to
make a judgement based on the information that she is being given as she
appears to trust her treating doctors and caregivers. In that ER has capacity to
consent to psychiatric treatment from time to time.161
This report had attached to
it a copy of the ADACAS report in relation to ER’s participation in ADACAS
supported decision making project; and a copy of a report dated
24 September 2014 by the Network Coordinator of the services for Adults with
a Disability, Disability ACT. This report stated that very rarely does ER refuse
her medication, or, unknown to staff, dispose of it. In the instance that she does,
it is a clear indication that a relapse may be imminent. ER values being healthy
in her mind and thus willingly takes the tablets when presented to her.
160 At page 3 161 At page 5
SCHEDULE 7 – EVIDENCE REGARDING ER’S
PARTICIPATION IN THE ADACAS SUPPORTED
DECISION-MAKING PROJECT - SEPTEMBER 2014
The following evidence was received from the parties pursuant to orders made by the
tribunal on 12 September 2014:
1. A report by ADACAS regarding the participation by ER in an ADACAS
supported decision making project. ER participated in this project from early
February 2014 until late March 2014, when ER became unwell. ER’s
participation in the supported decision making process was approved by the
Public Advocate.
a. In relation to ER’s capacity to understand and consent to the taking of her
medication, the report notes that ER said that she knows she must take her
drugs. ‘If I don’t I will get sick.’ ‘I have to do what Dr Wurth says or I will
get sick. I do listen to him. I don’t want to take them. Sometimes I tell
myself, I got to take them. It’s the most important thing’.162
b. It is noted that ER demonstrated a capacity to understand and manage risks
associated with her coeliac disease. This includes independent visits to
restaurants and making appropriate enquiries to ascertain which menu
items were gluten-free.
c. The report concludes that ‘when well, and given support and opportunity,
ER demonstrated that she was able to make a range of decisions that she is
currently not engaged in. She displayed insight into risk and a willingness
to manage those risks. … She has shown that, with support, she has
capacity to be informed and to recall information.’
2. A report by the Public Advocate to ACAT dated 7 October 2014 which included
a copy of a file note prepared by Ms Houghton dated 30 September 2014; a file
note regarding ER’s participation in the supported decision making program
prepared by Ms Houghton dated 7 October 2014; and a file note in relation to a
home visit by Ms Houghton to ER on 7 October 2014.
162 At page 4
a. in relation to the ADACAS report relating to ER’s participation in the
supported decision making program, the Public Advocate states that the
evidence confirms that ER’s ability to make choices about what she ate in
the context of her coeliac disease was well established prior to this trial. In
general the Public Advocate states the view that ER’s participation in the
trial does not equate to her gaining a demonstrated ability to make
complex decisions; either in respect of those domains which currently fall
the substitute decision-maker, or in respect of being able to provide the
requisite informed consent to her treatment for mental illness.163
163 At page 2
SCHEDULE 8 - LEGISLATIVE AMENDMENTS STILL
TO COME INTO FORCE
Amendments to the Mental Health (Treatment and Care) Act made by the
Mental Health (Treatment and Care Amendment Act 2014
7 Meaning of decision-making capacity
For this Act, a person has capacity to make a decision in relation to the
person’s treatment, care or support for a mental disorder or mental illness
(decision-making capacity) if the person can, with assistance if needed—
(a) understand when a decision about treatment, care or support for the
person needs to be made; and
(b) understand the facts that relate to the decision; and
(c) understand the main choices available to the person in relation to the
decision; and
(d) weigh up the consequences of the main choices; and
(e) understand how the consequences affect the person; and
(f) on the basis of paragraphs (a) to (e), make the decision; and
(g) communicate the decision in whatever way the person can.
8 Principles of decision-making capacity
(1) In considering a person’s decision-making capacity under this Act, the
following principles must be taken into account:
(a) a person’s decision-making capacity is particular to the decision that
the person is to make;
(b) a person must be assumed to have decision-making capacity, unless it
is established that the person does not have decision-making
capacity;
(c) a person who does not have decision-making capacity must always
be supported to make decisions about the person’s treatment, care or
support to the best of the person’s ability;
(d) a person must not be treated as not having decision-making capacity
unless all practicable steps to assist the person to make decisions
have been taken;
(e) a person must not be treated as not having decision-making capacity
only because—
(i) the person makes an unwise decision; or
(ii) the person has impaired decision-making capacity under
another Act, or in relation to another decision;
(f) a person must not be treated as having decision-making capacity to
consent to the provision of treatment, care or support only because
the person complies with the provision of the treatment, care or
support;
(g) a person who moves between having and not having decision-making
capacity must, if reasonably practicable, be given the opportunity to
consider matters requiring a decision at a time when the person has
decision-making capacity.
(2) A person’s decision-making capacity must always be taken into account in
deciding treatment, care or support, unless this Act expressly provides
otherwise.
(3) An act done, or decision made, under this Act for a person who does not
have decision-making capacity must be done in the person’s best interests.
(4) In considering a person’s decision-making capacity under this Act, any
approved code of practice under section 114 must be taken into account.
Amendments to the Guardianship Act by the Mental Health
(Treatment and Care) Amendment Act 2014
70A Restrictions on consent by guardian to mental health treatment, care
or support
(1) A guardian who has power to give for a person a consent required for
medical treatment involving treatment, care or support under the Mental
Health (Treatment and Care) Act 1994 may consent to that treatment only
if the person—
(a) does not have decision-making capacity under that Act; and
(b) does not have an advance consent direction under that Act
authorising the treatment; and
(c) expresses willingness to receive the treatment.
(2) A consent must be in writing.
Note If a form is approved under s 75A for this provision, the form must be used.
(3) A consent must be for a stated period, of not longer than 6 months, but can
be renewed (and further renewed) for another stated period of not longer
than 6 months.
(4) In considering the stated period necessary for a consent to treatment, a
health professional who is giving the treatment must take into account—
(a) whether, and when, the person is likely to regain decision-making
capacity under the Mental Health (Treatment and Care) Act 1994;
and
(b) the likely duration of the treatment, care or support required; and
(c) the content of any advance consent direction in force for the person.
(5) The health professional must tell the ACAT and the public advocate in
writing about a consent, including the stated period.
Note If a form is approved under s 75A for this provision, the form must be used.
(6) If a consent is not renewed at the end of its stated period, the health
professional must tell the ACAT in writing.
(7) The ACAT—
(a) must, on application, review a consent; and
(b) may, at any time on its own initiative, review a consent.
(8) A consent ends before the end of its stated period if—
(a) the ACAT directs that the consent be withdrawn; or
(b) subsection (1) (a), (b) or (c) no longer apply to the person.
Note The chief psychiatrist or another relevant person may apply for a mental health
order in relation to the person (see Mental Health (Treatment and Care) Act 1994
HEARING DETAILS
FILE NUMBER: AA 11/40
PARTIES’ REPRESENTATIVES:
PUBLIC ADVOCATE Amanda Tonkin, instructed by the
ACT Government Solicitor
CHIEF PSYCHIATRIST Justine Knowles, Australian
Government Solicitor
ACT DISABILITY AGED AND CARER
ADVOCACY SERVICE
Fiona May
ADVOCACY FOR INCLUSION Christina Ryan
HUMAN RIGHTS COMMISSION Sean Costello
TRIBUNAL MEMBERS: Professor P. Spender, Mr C.
Chenoweth, Ms L. Lennard