Bridges, Re [2000] QSC 188 [2001] 1 Qd R 574

FJL(: Soo 1-9 ()( Oq \s~ State Reporting Bureau TRANSCRIPT OF PROCEEDiNGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION AMBROSE J No S2000 of 2000 REVISED COPfES ISSUED State Reporting Bureau Date..,---t}- I ·5 I c0 -0 ADULT GUARDIAN (IN RE JUDITH GAIL BRIDGES) BRISBANE .. DATE 07/03/2000 JUDGMENT rl11 11 r, T!tc l.:1w Courts, Crnrgl' Strt·d, Brisli:111c, (). -l!)OI) Tdcplionl': (07) 32-17 -lYifl F:1'{: (07) .12-17 5.5.12 -- 1 of 29 -- 07032000 Tl/SKH17 M/T 7248/2000 (Ambrose J) HIS HONOUR: The applicant in this matter is the adult guardian who was appointed under Chapter 7 of the Powers of Attorney Act 1998. He is appointed by the Governor-in- Council under Section 150 of that Act. He makes this application with respect to Judith Gail Bridges, a regulated patient presently receiving treatment for a schizo affective mental disorder at the Princess Alexandra Hospital. The role of an adult guardian is specified in Section 127 (1) of the Act in the following terms - "The adult guardian's role is to protect the rights and interests of adults who have impaired capacity. 11 10 20 In schedule 3 of the Act, which I must say seems to me to be 30 rather disjointed in its construction, impaired capacity is defined to mean, "For a person for a matter means the person does not have capacity for the matter. 11 11 Matter, 11 is helpfully defined in the same schedule to include, 11 A type of matter. 11 40 "Capacity, 11 is defined in the following terms: "For a person for a matter means the person is capable of - (a) understanding the nature and effect of decisions about the matter, and (b) communicating the decisions in some way. 11 In this case one of the considerations is what effect on the definition of 11 capacity 11 has an inability of a person to make a rational, balanced and informed decision because of a mental disability of the sort for which Judith Gail Bridges 2 JUDGMENT 50 60 -- 2 of 29 -- 07032000 Tl/SKH17 M/T 7248/2000 (Ambrose J) to whom I will refer to as "the patient" is presently receiving treatment in the psychiatric ward at Princess Alexandra Hospital. Prima facie one would think a person whose capacity to make 10 a decision is impaired by a mental disability falls within the very category of person the rights and interests of whom the adult guardian is required to protect under Section 127 (1) of the Act. I am assisted in arriving at this conclusion by observations made in re T (1993) LR Family Division Court of Appeal at 95 and particularly the summary of the law - common law - to be found in Lord Justice Donaldson's judgment at page 115. It is an interesting judgment which deals with the problems of the sort that I must deal with here. Having analysed the cases and the roles of the medical profession and Courts and so on, at page 115 Donaldson LJ states the following rules: 11 (1) Prima facie every adult has the right and 20 30 capacity to decide whether or not he will accept 40 medical treatment even if a refusal may risk permanent injury to his health or even lead to premature death. Furthermore, it matters not whether the reasons for the refusal were rational or irrational, unknown or even non-existent. This is so not withstanding the very strong public interest in preserving the life and health of all citizens. However, the presumption of capacity to decide which stems from the fact that the patient is an adult is rebuttable. (2) An adult patient may be deprived of his capacity to decide either by long term mental incapacity or retarded development or by temporary factors, such as unconsciousness or confusion, or the effects of fatigue, shock, pain or drugs. (3) If an adult patient did not have the capacity to decide at the time of the purported refusal, that's of medical treatment, and still does not have that capacity, it is the duty of the doctors to treat him in 3 JUDGMENT 50 60 -- 3 of 29 -- 07032000 Tl/SKH17 M/T 7248/2000 (Ambrose J) whatever way they consider in the exercise of their clinical judgment to be in his best interests. (4) Doctors faced with a refusal of consent have to give very careful and detailed consideration to what was the patient's capacity to decide at the time when the decision was made. It may not be a case of capacity or no capacity, it may be a case of reduced capacity. What matters is whether at the time the 10 patient's capacity was reduced below the level needed in the case of a refusal of that importance for refusals can vary in importance. Some may involve a risk to life or irreparable damage to health; others may not." Re Twas a case I might mention, before referring to other parts of the judgment, where the question of whether a woman who had a certain religious background and so on could refuse consent to treatment and it was held essentially by the Court that one had to look at the mental capacity, the 20 illness, medication, in determining whether that lady was 30 capable of refusing at the time. She had been involved in a bad car accident and it had an effect on her pregnancy. One had to look at all those things to determine whether she did have a capacity to make 40 a decision to refuse treatment that would not necessarily but might save her life. In the judgment of Lord Justice Butler-Sloss he observed at 116: "A man or woman of full age and sound understanding may chose to reject medical advice and medical or surgical treatment either partially or in its entirety. Their decision to refuse medical treatment by a patient capable of making the decision does not have to be sensible, rational or well considered." 4 JUDGMENT 50 60 -- 4 of 29 -- 07032000 T2/SE25 M/T 7248/2000 (Ambrose J) His Lordship then referred to an observation of Robins JA in Malette v Shulman, a Canadian case, in the following terms: 11 At issue here is the freedom of the patient as an individual to exercise her right to refuse treatment and accept the consequences of her own decision. Competent adults, as I have sought to demonstrate, are generally at liberty to refuse medical treatment even IO at the risk of death. The right to determine what should be done with one's own body is a fundamental right in our society." His Lordship went on, however, to observe: in his judgment at page 117 "The question may arise as to whether the decision to consent or reject treatment is made by a patient who has the capacity to make the decision; in other words whether he is fit to make it or whether he has genuinely made the decision." His Lordship then went on to consider questions of undue influence and so on which are not relevant for me to deal with. Lord Justice Staughton at page 120 stated the general rule in these terms: 11 An adult whose mental capacity is unimpaired has the right to decide for herself whether she will or will not receive medical or surgical treatment, even in circumstances where she is likely or even certain to die in the absence of treatment. Thus far the law is clear. The difficulty arises when it is uncertain whether or not the competent adult, as I call her for 20 30 40 brevity, does or does not consent to the proposed 50 treatment. 11 And then he dealt with the occasions when it may be possible that there is not a real consent or a true refusal. As he said at 121: 5 JUDGMENT 60 -- 5 of 29 -- 07032000 T2/SE25 M/T 7248/2000 (Ambrose J) "Further complication may arise because an apparent refusal to consent may not be a true refusal. 11 His Lordship then went on to deal with this aspect. "At the time of apparent consent or refusal the person may not for the time being be a competent adult. Her 10 understanding and reasoning powers may be seriously reduced by drugs or other circumstances, although she is not actually unconscious." Applying that test in the present case, the patient's problems on all the expert medical evidence arises not from taking drugs but by failing to take drugs which she needs to allow her to function and operate in spite of her psychotic condition. Well, on the facts in this case, it seems to me in the light of what was said in re T and in what was held in a case that purported to apply it, re C 1994 1 All England 819, I should examine the evidence placed before me on this application. I regret that the urgency of the application prevents me from analysing the authorities more rigorously. I will turn first to the evidence of the patient's son. It is interesting to note that he comes within the definition of statutory health attorney under section 63 of the Powers 20 30 40 of Attorney Act, on the basis that he is more than 18 years 50 of age and has the care of the patient when she is not in hospital and who is a relation, being the son. He is 34 years of age and is employed interestingly as a wardsman at the Princess Alexandra Hospital. He has lived 60 6 JUDGMENT -- 6 of 29 -- 07032000 T2/SE25 M/T 7248/2000 (Ambrose J) with his mother at Holland Park all his life. He is aware that she has had psychiatric treatment for mental illness since she was young and certainly over the last 20 years or so while he has been living with her. She has taken medicines for a psychiatric illness and in 1997 it is thought as a consequence of the effect of some of the medicine, she developed kidney problems. She was taken to a psychiatric ward and put on medication in 1997. He lists twelve different sorts of drugs that she is supposed to take daily. Her problem at the moment on the expert evidence from psychiatrists is that she declined for some reason to take one of the drugs which was regarded by the experts as essential for her proper control. In any event, she was admitted to Princess Alexandra Hospital on 29 February this year. At that time she was taking everything except the one drug that experts say she should have been taking. She stopped taking that drug, according to her son, six or seven months ago; about September 1999. that is, in She has had problems with her dialysis. She started having dialysis in about January 1999. Her son says she became distressed, she did not like it. She used to have it twice a week for four hours to start with and then she had cut it down to two hours. She used to 7 JUDGMENT IO 20 30 40 50 60 -- 7 of 29 -- 07032000 T3/SE25 M/T 7248/2000 (Ambrose J) complain about movement in her legs and just generally she disliked it. She seemed to dislike it, according to her son's version of events, prior to her ceasing to take her drugs for control of her psychotic condition in September. She has told him that, although she has some sort of kidney problem, it is not very serious; not as serious as problems that other people on dialysis have. He has marked his mother's medication, put it out in little 10 bottles for her to take at various times of the day. That 20 is part of the routine, and he has been doing this for years now. He says then that it was in about September 1999 that she started not to take all the drugs prescribed for her and in 30 particular at that time she ceased to take a drug called Olanzapine. She said that her legs felt as if they wanted to walk and she attributed this to that particular drug, although she also seems to have attributed it, partly at least at other times, to the dialysis that she was receiving. Well, her son tried to persuade the patient to keep going with dialysis but she told him that she was tired of it; it upset her too much. The first time she refused to continue with her dialysis, which she had started in January 1999, was November 1999. She was then admitted to the renal ward of the hospital and was regulated under the Mental Health 8 JUDGMENT 40 50 60 -- 8 of 29 -- 07032000 T3/SE25 M/T 7248/2000 (Ambrose J) Act and she was in hospital on that occasion for a couple of weeks. Eventually, she bargained with the hospital authorities and said she would go back for dialysis if they would let her go 10 back for two hours a day, three days a week and she did this for some time. However, on 26 February 2000, she stayed for dialysis for only one hour and on 29 February she phoned up the hospital and said that she would not be coming back for more dialysis. She was eventually admitted to the psychiatric ward where she was examined by Doctors Leong and Schneider and they tried to persuade her to have dialysis. She refused to consent and her son, being her statutory health attorney, was not prepared to override his mother's wishes. He thought that she seemed to be able to discuss matters with him adequately and he tried to talk her into c.ontinuing on with dialysis but she simply declined and he said he thought she had the capacity to make her own decision. I must say, having watched her give evidence and answer questions, she would impress one from what she says and the way she says it that she does have a capacity to make a decision. However, to come to that conclusion would disregard entirely the expert evidence of the psychiatrists who have been treating her and I will go to that shortly. 9 JUDGMENT 20 30 40 50 60 -- 9 of 29 -- 07032000 T3/SE25 M/T 7248/2000 (Ambrose J) Her son said that he did not notice any difference in her behaviour or attitudes or thought patterns since she stopped taking the drug to which I have referred, six or seven months ago. The patient herself was called to give evidence. She after all is the one who has declined to continue on with the dialysis. She explained that she stopped taking the drugs prescribed for her by the psychiatrist, people at the Princess Alexandra Hospital, because she thought she was having side effects and she worked this out from reading a pamphlet that she apparently found in the box containing the pills. She said she did not like having it every night so she stopped taking the tablet and she observed it was not doing her any good anyway. Then she said that with respect to her kidney situation, she didn't think she had a kidney problem anyway. However, she agreed that she had been told that the dialysis was supposed to clean out her blood and that she understood that if she continues to refuse to have dialysis, she will die, and she said she has chosen not to continue on with the dialysis knowing that she will die; that she would rather die than stay on the dialysis because she doesn't like anything about that treatment at all. She said it is not a painful treatment and that her problem is that instead of improving her health it makes her feel worse and she comes 10 JUDGMENT 10 20 30 40 50 60 -- 10 of 29 -- 07032000 T4/SKH17 M/T 7248/2000 (Ambrose J) home sick after having it. She said she used to go home and vomit after it. She said it is a bit uncomfortable receiving the treatment but it does not cause any pain. She said she was sorry she had told anybody that she had 10 stopped taking the psychotic medicine because she did not think it was doing her any good anyway and she attributes the problems that she has to face on this application as resulting from the fact that she told her doctors that she had stopped taking this particular drug. She said she really would rather die than have to put up with dialysis again and that she had even paid for her funeral so that she would be ready to go. She advised that she used to hear voices from time to time and she concluded that it was God speaking to her and telling her to come up there. She has persuaded herself that it was not a delusion, that it was God talking to her and it was only God's voice that she could hear and not the voice of anybody else. She summed up her approach by saying that she thought she was sensible enough to have the right to make her own decisions, whether she lived or died. She said, "I don't think anybody has got the right to make that decision for me at all." She said she had seen the medical reports, or a couple of them, that were placed before me. It was pointed out that the psychiatric evidence, expert evidence, was to the effect that her ability to make sound judgments had been 11 JUDGMENT 20 30 40 50 60 -- 11 of 29 -- 07032000 T4/SKH17 M/T 7248/2000 (Ambrose J) diminished because she had not been taking proper treatment for her psychotic condition. She said she disagreed with that in effect. Well, that was her evidence. So, there is the evidence from the patient and her son. I must now, I think, turn to the evidence of persons concerned with her welfare far removed from the family. Robyn Therese Albury is the deputy adult guardian and she visited the patient at Princess Alexandra Hospital on 4 March, 2000; last Saturday. She is trained in interviewing people with impaired capacities. She went out there to see whether she should, as she was entitled to do, give a statutory authority to have this dialysis treatment given to the patient over her objection. She went there to see whether the patient showed minimal or no understanding of what dialysis involved and why it was required. She said that the patient was unable to identify specifically what she didn 1 t like about dialysis. She said that the patient told her that she had not been taking her drugs for her mental illness for seven or eight months and it did not make much difference to her behaviour if she did take them. She said that the doctors had informed her that her kidneys had shrunk and that she needed dialysis but she was not sure whether that was right or not. Ms Albury asked the patient directly what she thought would happen if she did not have dialysis and the patient said that she would die. She said that she had previously 12 JUDGMENT 10 20 30 40 50 60 -- 12 of 29 -- 07032000 T4/SKH17 M/T 7248/2000 (Ambrose J) refused dialysis but had changed her mind because of her son, but she had now decided that she wanted to die because, "There was nothing here any more," and she did not like what was happening in the world. Ms Albury came to the conclusion, unsurprisingly perhaps, that the patient's inconsistent and irrational approach to her medical condition indicated that she did not have capacity to refuse treatment and that in fact at that stage her objection could have been over ridden under Section 92 of the Powers of Attorney Act. She talked to other doctors at the hospital and concluded that it was not so urgent as to cause her to override the objection and the treatment could wait until Monday morning. Well, it is now Tuesday morning. She informed the doctor that if consent was required for urgent dialysis over the weekend she was prepared to give it. Lyn Barrett is a senior legal officer of the Office of the Adult Guardian. She interviewed the patient on Friday afternoon, 3 February, and spoke to her in the presence of her son, John. It lasted for a couple of hours and the first thing the patient said to Ms Barrett was that she did not think that she needed dialysis and she did not think that she had a renal problem. The patient was informed of the view of Dr Leon and the patient said she had had one injection for her mental illness and that she would not have it any more because it made her twitch. 13 JUDGMENT 10 20 30 40 50 60 -- 13 of 29 -- 07032000 T5,6/PAF23 M/T 7248/2000 (Ambrose J) She also said that she did not want to take the medication orally either. She did not want any medication at all. Well, there was a discussion about the reasons why she didn't like dialysis, and I will not go into that again. She had been offered to have dialysis in a ward but she 10 refused that also. Then she debated whether or not she had a kidney problem or whether it was related to any particular drug that she had taken for her psychotic problems. The patient told Ms Barrett also that she had not taken Olanzapine for six or seven months because when she does it makes her feel as if her legs are taking a fit and she feels as if she is walking. She confirmed to Ms Barrett that over the past 20 years she has sometimes heard and seen God and that she had been seeing psychiatrists for ten or eleven years. She said that she thought she knew what she was doing and she said that if she was sent to Walston Park for treatment she would hang herself. Ms Barrett said she explained to the patient that doctors wanted her to take psychiatric medication until they had had some affect and then she might change her mind about dialysis. The patient said she knew what the doctors were trying to do and she was more determined this time not to take dialysis. 14 JUDGMENT 20 30 40 50 60 -- 14 of 29 -- 07032000 T5,6/PAF23 M/T 7248/2000 (Ambrose J) It was explained to her that the adult guardian could consent to treatment over the weekend to make sure she stayed alive until the Court determined this application and asked whether she would consent to dialysis over the weekend. However, she refused to and said that she would IO have to be forced to. She said that she understood the longer she goes without dialysis the greater her chances of dying. Then she detailed the mode of dying that she anticipated. She was advised, however, of this application which was heard yesterday afternoon and she said that she would like to attend Court. Well, she did attend Court and she gave evidence. According to Ms Barrett, on 6 March, that is, yesterday, she again spoke with the patient who told her then that she didn't think that there was anything wrong with her kidneys and that she attributed the dialysis treatment she had been having to being punished by God for past activities and that if she stopped having dialysis she thinks she will die and that is what she wants to do. She does not want to go onto the machine because she thinks there is nothing wrong with her kidneys. She thinks she is being punished by God but if she does not go on the machine she will die. This rather confusing discussion ended in her saying that she did not know how to explain why she did not like or want dialysis. All she knew was that she wants to die. 15 JUDGMENT 20 30 40 50 60 -- 15 of 29 -- 07032000 T5,6/PAF23 M/T 7248/2000 (Ambrose J) Well, I will now go to the final evidence adduced, which is the affidavit of the adult guardian, Mr Cockerill, to which is exhibited three medical reports. He summarises the effect of the psychiatric evidence I think sufficiently. The patient for a very long time has been suffering from a 10 schizo-affected disorder. This has produced hallucinations. She also suffers from chronic depression. At the moment she is a regulated patient under the Mental Health Act and she is held in the Princess Alexandra Hospital for treatment for her disorder. She has declined to take Olanzapine for a very long time. She has been admitted to the Princess Alexandra Hospital for treatment for mental illness but, unfortunately, the way the legislation is drafted, although she cannot decline to receive treatment for a mental illness, she can decline, apparently, to receive treatment for a non-mental condition such as renal failure. He explains that he is making this application because her adult guardian, her son, has declined to. It is hard to criticise the son, one might think, for that. He has lived with his mother for a very long time. She does not appear to him to be incapable of making a decision and he has not been persuaded, apparently, by the expert psychiatric evidence that in fact she is so incapable. Well, I will go first to the evidence of Dr Schneider, the Director of General Psychiatry at the Princess Alexandra 16 JUDGMENT 20 30 40 , 50 60 -- 16 of 29 -- 07032000 T5,6/PAF23 M/T 7248/2000 (Ambrose J) Hospital. He said that the patient has been receiving treatment for her psycho-affected disorder for many, many years. The mainstay of the management over a significant period has been the anti-psychotic drug Olanzapine. Unfortunately, six or seven months ago, without telling him, 10 apparently, she decided she would stop taking this drug. As a consequence, she suffered from paranoid delusions and a feeling that life is hopeless and she would be better off dead. Dr Schneider says there has been a confluence of the schizophrenic-type symptoms and depression. She has incorporated, according to him, delusions relating to her dialysis; the renal treatment has been mixed up with her delusions; she believes that people are spying on her. I will not go into the various delusions that he deals with. In fact, she has developed delusions relating to other persons connected with the treatment she gets directing sexual acts and suggestions towards her. The doctor said that in his view all these matters that have turned her off renal treatment are delusional based and there is no reality basis for them. It has caused a heightening of her depressive symptoms and she has told him that life is meaningless and she has no concern about the possibility that she may die from her renal problems shortly. Dr Schneider says that in his view the patient is currently suffering from a severe recurrence of a long-standing schizo-affected disorder. This reflects 17 JUDGMENT 20 30 40 50 60 -- 17 of 29 -- 07032000 T5,6/PAF23 M/T 7248/2000 (Ambrose J) a depressed mood and delusions of a paranoid type. Both of these major clinical features impact upon her capacity to make a decision to refuse dialysis. She has incorporated the renal treatment, dialysis treatment, into her paranoid delusions and delusions about another patient at the unit. This, in his view, is one of the reasons she is refusing further dialysis. Her depressed mood with feelings of hopelessness and pessimism have led her also to refuse dialysis treatment because, due to her psychotic condition, she sees no future hope for her. It is Dr Schneider's opinion that the patient's refusal to have the dialysis is a direct consequence of the relapse of her schizo-affected disorder. Because of this severe mental illness, she no longer displays a competence to make decisions about her health in respect of her renal condition. All efforts to persuade her to resume her dialysis have been unsuccessful. I must add it is not unusual for people with firm held delusional beliefs to refuse to be persuaded to act contrary to those beliefs. Well, Dr Schneider says that all the medical evidence is that if she continues without dialysis she will die within a matter of days and, if she does die, it would be directly due to the impact of her major psychiatric condition on her capacity to make proper decisions concerning her health. 18 JUDGMENT 10 20 30 40 50 60 -- 18 of 29 -- 07032000 TS,6/PAF23 M/T 7248/2000 (Ambrose J) The doctor says she has in fact resume the anti-psychotic medication, various medications including the Olanzapine and has had an injection of long-acting anti-psychotic drug. He thinks that over the next fortnight this medical regime will gradually reduce the intensity of her delusions. Unfortunately, however, her psychiatric condition will not be controlled before she dies as a result of her renal failure unless she has dialysis in the meantime. He says that she should have renal dialysis treatment as soon as possible. Another doctor, Dr Leong, the Psychiatric Registrar at the Princess Alexandra Hospital, really gives evidence to the same effect as that of Dr Schneider. She says that in her view from her discussions the patient has a minimal understanding of why dialysis is required. She says that the dialysis is likely to cause only temporary distress and the effect of the dialysis treatment on her longevity will far outweigh the life-threatening complications of not having this treatment because it will produce conditions which will put her life gravely at risk and ultimately determine it. If she does not have dialysis within two weeks from 26 February she will then start to experience life- threatening complications. As a general rule, according to Dr Leon, the anti-psychotic effects of the drug she is now on only take effect with respect to controlling delusions and so on after four to six weeks. 19 JUDGMENT IO 20 30 40 50 60 -- 19 of 29 -- 07032000 T7/RB28 M/T 7248/2000 (Ambrose J) So she has about a week of life left. If she does not have dialysis then it will take four or five weeks, I suppose, at this stage for the drugs to have an effect so that she can make a decision with her mind unaffected by the delusional beliefs and psychotic condition from which she presently 10 suffers. According to Dr Leon the patient will probably receive some sedation prior to dialysis. It may be that she will be able to have this treatment although I have not had the opportunity of finding out the details. It may be that whatever emotional trauma her delusional beliefs produce in her when she has dialysis can be overcome by sedation, at least until her psychotic condition is better controlled. The last witness that - or the last doctor that I will refer to is Dr Johnson, the consultant nephrologist at the PA Hospital. He deals with the history of her renal problems. He simply goes through the history which has been traversed sufficiently, I think. Initially in November 1999 after she had been off dialysis for a while and off the drug therapy for her psychosis she went into hospital. There was a significant improvement in her psychiatric condition when she was on the anti-psychotic medication that she had been off for some time. After that psychotic condition had been regulated to some extent anyway by the drug treatment, she then agreed to go back onto 20 JUDGMENT 20 30 40 50 60 -- 20 of 29 -- 07032000 T7/RB28 M/T 7248/2000 (Ambrose J) dialysis. And when she did go back on to dialysis she improved. On 29 February, according to Dr Johnson, she again phoned the dialysis unit, said she did not want to continue on with to dialysis and wanted to die. She said she had not been taking her anti-psychotic medication for the previous few months and she started expressing paranoid ideas in the fortnight or so before her phone call on 29 February 2000. She expressed the belief that God was punishing her through the dialysis treatment which she did not really accept she needed anyway. She denied she had any physical condition really that needed treatment with dialysis. Currently she has 2 per cent of normal kidney function which is not sufficient to sustain life without dialysis. Without dialysis she has only a week or so to live. Dr Johnson says he has treated her or been associated with her treatment for several years and her psychiatric condition has now clearly deteriorated greatly over the last few weeks. He expresses the view that her condition has deteriorated to such an extent that her ability to see the need for dialysis has been impaired. And to no small extent this is due to her delusions which seem to involve the dialysis treatment she has been getting. He observes that a similar episode occurred in November 1999 and after her drug treatment she changed her mind and went back on to dialysis therapy. 21 JUDGMENT 20 30 40 50 60 -- 21 of 29 -- 07032000 T7/RB28 M/T 7248/2000 (Ambrose J) The doctors generally say that once her psychotic condition has been stabilised and she is then, in their view, able to make a decision - an informed decision without the impact of her psychotic condition on decision-making, then if she decides she does not want to continue on with dialysis, that 10 wish, of course, would be accepted. The real question in this case then, is whether she has the capacity at the moment because of her psychiatric condition to make an informed decision. Or whether she is prevented from doing that because of her psychotic condition which will not improve for another month or so of medication, presumably while she remains a regulated patient. As I have indicated I find the layout and provisions of the Powers of Attorney Act somewhat disjointed and a little difficult to follow. In schedule 1 to the Act, part 2, the health care principle is defined to mean a power for a health matter for an adult being exercised by an attorney. It should only be exercised in the way least restrictive of the adult's rights and only if the exercise is appropriate to promote and maintain the adult's health and well-being. It says the health care principle, under 12(iv) does not affect any rights an adult has to refuse health care. I assume that section 12(iv) of the Health Care Principle only applies if an adult has a capacity to make a decision unimpaired by a mental condition or a psychotic condition of the sort that the patient in this case has. 22 JUDGMENT 20 30 40 50 60 -- 22 of 29 -- 07032000 T8/RK21 M/T 7248/2000 (Ambrose J) Under section 1, of course, there is a presumption of capacity. It is said pursuant to the principle under section 76 of the Act, 11 An adult is presumed to have capacity for a matter." That does not mean it is an irrebuttable presumption that she has capacity. In my view, IO on a proper construction of the Act, that presumption is rebuttable. In my view, on the evidence in this case which is uncontradicted really, that presumption has been rebutted. The powers of the Court which I now propose to exercise, are set out in section 110 of the Act. 110 l(a) says "That an application may be made to the Court for a declaration, order 11 among other things "about something in or related to this Act, or for consent to a special health matter. It is a great pity that the Act was not drafted to spell out more precisely and clearly what powers the Court has in cases of this sort and the principles upon which discretionary exercise of those powers ought be exercised. However, one has to do the best one can with this sort of legislation, I suppose. Under section 111, 11 The Court may make a declaration about a person's capacity''. Well, I propose to do that. Under section 119, subsection 1, the Court may give consent. to special health care of an adult. Whether that has any application on a matter of this sort is perhaps debatable. However, doing the best I can, I propose----- 23 JUDGMENT 20 30 40 50 60 -- 23 of 29 -- 07032000 T8/RK21 M/T 7248/2000 (Ambrose J) MR KEIM: Your Honour, would it just be helpful if I said a few things at this stage? HIS HONOUR: Yes. MR KEIM: I take it that essentially you want Ms Bridges to receive----- HIS HONOUR: To have dialysis. MR KEIM: To have dialysis, yes. The orders that I suggest are adapted from the application----- HIS HONOUR: Yes, I actually used your application in drafting an order. MR KEIM: Yes. HIS HONOUR: And what I am prepared to do is make a declaration under 111 - two declarations, actually and then order that pending her capacity to make proper decisions over the next six weeks or so, she should have the dialysis treatment advised by the doctor - Dr Johnson. MR KEIM: Yes. It's just that - and my application didn't deal with this fully. It seems to me that you have to make a declaration that she doesn't have capacity. HIS HONOUR: That's right. MR KEIM: And then you have to make a declaration dealing with section 92. HIS HONOUR: Well, I don't know. I'm not sure that section 92 has really got much to do with it, quite frankly. I mean, I've looked at section 92. I've gone through the case - it seems to me, I mean, you can try to force it within IO 20 30 section 92 but I mean, adults objecting, it's got to be a 40 rational objection. It's got to be somebody who can object, who can decide. If they don't have that mental capacity to do that, I-can't see that section 92 comes into it. MR KEIM: Well, the structure of the Act - I mean, it is a difficult Act as your Honour said. HIS HONOUR: It's a ridiculous Act. MR KEIM: The view I took of it was that if you have 50 capacity, then the Act really doesn't apply. But if you do have capacity----- HIS HONOUR: If you don't have capacity - I mean, I'm going to find that she doesn't have capacity. MR KEIM: Yes, yes, that's right. But if you----- 24 JUDGMENT 60 -- 24 of 29 -- 07032000 T8/RK21 M/T 7248/2000 (Ambrose J) HIS HONOUR: And she doesn't have the capacity to object or to decide or to do anything because of her psychotic condition. MR KEIM: Yes, I understand that, your Honour. But it seems to me that section 92 does make provision where a person doesn't have capacity, but they have some----- HIS HONOUR: Well, they don't talk capacity, it talks about 10 minimal understanding. MR KEIM: Yes, that's correct. HIS HONOUR: Understanding has got nothing to do with capacity. MR KEIM: It just seems to be----- HIS HONOUR: People with no intellectual - with no mental capacity can understand things. MR KEIM: Yes. HIS HONOUR: They can understand them so well that they can take very evasive, carefully worked out steps to avoid things that they don't want to happen. MR KEIM: Yes. HIS HONOUR: It seems to me understanding has got nothing to do with capacity to make decisions. MR KEIM: Well, my submission was that a person could not have capacity but then section 92 could operate and I was going to suggest, your Honour, that you make a declaration that she has no or only minimal understanding of what renal dialysis involves and why it is required by her. HIS HONOUR: Yes, well, I'll do that pursuant to section 110. MR KEIM: Yes. Yes, that was the - would your Honour----- HIS HONOUR: Well, I followed broadly speaking. I mean, I don't mind making that declaration if it's going to be of any use because I think she does have minimal understanding on all the expert evidence. MR KEIM: Yes, on accepting that----- HIS HONOUR: The doctors keep saying she doesn't know what it's about. MR KEIM: That was the view that I understood your Honour to take. Can I just suggest the orders, your Honour? HIS HONOUR: Yes. 25 JUDGMENT 20 30 40 50 60 -- 25 of 29 -- 07032000 T8/RK21 M/T 7248/2000 (Ambrose J) MR KEIM: You can disregard it if you like. The first one - and I don't----- HIS HONOUR: Well, look, what I think I might do is make the order, read out the order that I propose to make. MR KEIM: Yes, your Honour. HIS HONOUR: And I won't make it until I confirm it after 10 you've had an opportunity to comment on it. MR KEIM: Yes, that would be suitable, your Honour. HIS HONOUR: Firstly, I declare pursuant to section 111 of the Powers of Attorney Act 1998 that Judith Gail Bridges does not have capacity for the purpose of making decisions about her health care including care intended to sustain her life, nor does she presently have the capacity to refuse to allow renal dialysis to be administered to her. Two, I declare pursuant to section 110 of the Powers of Attorney Act 1998 that Judith Gail Bridges, as a consequence of her schizoaffective disorder, has a significantly reduced capacity to understand that renal dialysis under sedation is 20 ( 30 likely to cause her minimal temporary distress and will be 40 outweighed by the benefit to her of the renal dialysis. Three, I order that the applicant consent to the said renal dialysis as advised by Dr David Johnson, Consultant Psychiatrist at the Princess Alexandra Hospital for a period so of six weeks from the date of this order, or a period expiring on an earlier date if the applicant is satisfied on the advice of one or more psychiatrists treating Ms Bridges that the schizoaffective disorder affecting her is sufficiently well controlled to allow Ms Bridges to regain 60 26 JUDGMENT -- 26 of 29 -- 07032000 T8/RK21 M/T 7248/2000 (Ambrose J) understanding of the matters referred to in the second declaration. Four, I order pursuant to section 110 of the Powers of Attorney Act 1998 that Judith Gail Bridges have the said 10 renal dialysis for a period of six weeks from the date of this order for a period expiring on an earlier date if the applicant is satisfied on the advice of one or more psychiatrists treating the said Ms Bridges that the schizoaffective disorder affecting her is sufficiently well controlled to allow her thereafter to make a decision at a time when her capacity to make that decision is not unduly impaired as a consequence of lack of treatment necessary to control the effects of that disorder from which she presently suffers. Five, liberty to apply. What do you say about that? MR KEIM: The comment I was going to make with regard to 20 30 section 92 - and this is where my application was wrong, 40 that the things that you are suppose to have a minimal, or no understanding, of seem to be B(i) and B(ii). HIS HONOUR: Yes. MR KEIM: And I was going to suggest that your Honour should make a - that she has got minimal understanding of both of those things and then make a separate finding that the health care is likely to cause her only temporary distress that is outweighed by the benefit to her of the health care. 50 HIS HONOUR: Well, perhaps the easy way to do it is treat that as a draft order that I have just pronounced and if it is unsatisfactory or you think it would be safer to put something else in. I mean, in my view, the Act is so badly drafted that it is a great shame that in a situation like this one is worrying about section 92. MR KEIM: Yes, your Honour. 27 JUDGMENT 60 -- 27 of 29 -- 07032000 T09/IK29 M/T 7248/2000 (Ambrose J) HIS HONOUR: In section 92 does not cover a person who objects who has no capacity to object because of some mental incapacity. This purports to apply both to people with mental incapacity and people without mental incapacity. MR KEIM: Yes. HIS HONOUR: That seems crazy. MR KEIM: It perhaps is more suitably drafted to deal with people who have got some degree of intellectual disability but do not have a mental----- HIS HONOUR: Some retardation or something along those lines. MR KEIM: Yes. HIS HONOUR: But this is a person who does object. She has refused. The only question is whether it is a true objection or a true refusal----- MR KEIM: Yes. HIS HONOUR: ------in the light of that English case that I referred to or whether it is one which is not really a true one at all because she does not have the mental capacities IO 20 to do those things. 30 MR KEIM: Yes. Your Honour, if I could get a copy from the Court Reporting Bureau. HIS HONOUR: Yes, all right. Perhaps the shorthand people can have the order prepared and drafted and then you can get a copy and I will get a copy and if you wish to you can come back and----- MR KEIM: Yes, your Honour. HIS HONOUR: -----attempt to persuade me to try and fit section 92 into the scheme of things, even though I do not think it has got much relevance. MR KEIM: No, I just wanted to make sure that - I suppose if anybody else took a different----- HIS HONOUR: Yes. MR KEIM: I mean, for example, if Mr Bridges Junior took a view that he wanted to appeal that it meshed in with the Act completely. HIS HONOUR: Well, I rather suspect that Mr Bridges Junior succumbed to his mother's pressures----- MR KEIM: Yes. 28 JUDGMENT 40 50 60 -- 28 of 29 -- 07032000 T09/IK29 M/T 7248/2000 (Ambrose J) HIS HONOUR: -----because he obviously thought she should take it that he had been doing his best to talk her into it. MR KEIM: Yes. Thank you, your Honour. 29 JUDGMENT IO 20 30 40 50 60 -- 29 of 29 --