For treatment providers, the question of capacity most often arises when a patient refuses a course of treatment that the treating practitioner considers is in the patient's best interest. Two recent cases (involving the same patient) heard by the New South Wales Civil and Administrative Tribunal (Guardianship Division) and the Supreme Court of New South Wales highlights the complexities that confront treating practitioners when a patient's capacity is in doubt.
In the case of DXI  NSWCATGD 4 (24 June 2016), the Patient's treating practitioner Dr SDP brought an application before the Tribunal seeking consent to special medical treatment, the termination of the Patient's pregnancy (she was 21 weeks pregnant at the time of the hearing).
Dr SDP's application was sought because the Patient had developed severe pre-eclampsia, on a background of renal failure and with progressive hypertension. The Patient required haemodialysis six times each week and had been on dialysis since week 16 of her pregnancy, she had also been given medication for her blood pressure.
There was no further treatment which could be offered to the Patient or the foetus and Dr SDP warned that the Patient was at risk of eclamptic seizures, cerebral haemorrhage, or stroke if the pregnancy was not terminated, with the remote possibility of death. Dr SDP confirmed that for the foetus to survive, the pregnancy would need to reach a minimum of 24 weeks gestation, and the foetus to be appropriately developed. Dr SDP considered this made continuing treatment essentially "futile, with a risk to [the Patient] of serious permanent injury". The termination of the Patient's pregnancy would arrest the process of pre-eclampsia over days.
Specialist evidence was given supporting the Application, which included, that without the intensive treatment which was given to the Patient during her admission, the foetus would have died at an earlier stage in the pregnancy and the Patient would have experienced a miscarriage.
The Patient gave only limited evidence to the Tribunal, but was to the effect that she wanted to keep the baby despite that she had been told it would be dangerous to do so. Dr SDP's application essentially alleged that the Patient's intellectual disability prevented the Patient from fully understanding the implications of her medical illness and why her pregnancy should not continue.
There was no evidence before the Tribunal of any clinical assessments of the Patient's decision-making capacity. The only evidence concerning capacity came from the Patient's mother who gave evidence that her daughter was capable of making her own decision concerning the proposed termination of her pregnancy.
Under Australian law, an adult is presumed to have capacity to consent to or refuse medical treatment unless that presumption can be rebutted by evidence (Guardianship and Administration Act 2000 (Qld) Schedule 1.). A person is said to have capacity if they are able to understand the nature and effect of a decision; are able to make decisions freely and voluntarily, and they are able to communicate that decision.
As there was no evidence before the Tribunal that the Patient was incapable of understanding the general nature of the proposed treatment, and incapable of understanding the general effect of the proposed treatment, the Patient's presumption of capacity was not rebutted. Dr SDP's application was therefore dismissed.
The next day, an urgent application was brought by the hospital in the New South Wales Supreme Court, where the Patient's capacity to refuse treatment was to be decided (Application of a Local Health District; Re a Patient Fay  NSWSC 624). Justice Sackar convened a hearing at the Patient's bedside where the Patient's lack of response, unwillingness or inability to say anything at all lead his honour to infer that the Patient did not understand the dilemma she faced.
The Patient's mother gave strong views that she vehemently opposed any form of intervention, except in what might be described as "dire circumstances" and purported to speak on behalf of the Patient. It was considered that the Patient's mother had little insight into the consequences if the Patient were to suffer a stroke causing her some disability and that her somewhat domineering, overly protective attitude had the potential to obstruct medical practitioners from attempting to make an objective assessment of the Patient's capacity to understand her dilemma.
Further evidence of the Patient's lack of capacity was her solicitor's inability to obtain any instructions and the Patient's inability to relay to her solicitor that she understood her situation.
Justice Sackar made an ex tempore decision that day, that on the evidence the Patient did not adequately understand, nor was she capable of balancing or making an informed decision, such as to permit her to refuse the treatment recommended.
On the evidence in its totality the Patient did not, in reality, appreciate the true significance of the dilemma she faced and had neither the strength nor ability to contest the will of her mother, who was well meaning, but frankly misguided. His honour was critical of the Tribunal's decision to rely on the mother's evidence and not further assess the Patient's capacity.
Accordingly the Supreme Court made the decision that allowed the intervention treatment.
While in this case the patient's lack of capacity was made obvious by her refusal to receive vital medical treatment, and inability to convey that she understood the risks of refusing treatment, treatment providers must always be cognisant of a patients capacity to consent to treatment, particularly when there are 'red flags' present.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.