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Guardians, Carers, Families, And The Courts Can Face Difficult Decisions

13-05-2010

By Andrew Goode, Mellor Olsson Lawyers.

Recently I was given a copy of a District Court judgment which illustrated the difficulties that can face guardians and Judges when considering the rights of a mentally disabled person.

In the relevant case, the Judge had to consider whether the Public Advocate should be appointed as the guardian of a 41 year old man who suffered from Down Syndrome. The Office of the Public Advocate is an independent statutory official accountable to the South Australian Parliament who protects and promotes the rights of people with mental incapacity.

The man had been in institutional care since he was 4 and had recently been diagnosed with testicular cancer. The issue before the Court was whether or not he should undergo chemotherapy treatment. If he did not receive chemotherapy the medical evidence was that he would die within a matter of months, possibly within a matter of weeks. There was no dispute that he was mentally incapable of making decisions himself.

The man’s family did not believe he should undergo the chemotherapy. His carers however considered he should undergo the chemotherapy.

The Court was told he enjoyed life, and the companionship of people, and had been generally in good health until diagnosed with cancer.

His chances of surviving the cancer were about 70% if he underwent the treatment and he would then live until about 60 years of age.

The man’s family did not want him to undergo the treatment because of the unpleasant side effects from chemotherapy, which as the Judge noted, can vary depending on the circumstances.

The Judge said the side effects of the chemotherapy might be worse for someone who suffered from Down Syndrome than for a person who was not mentally incapacitated. The man did not like being touched or having any kind of medical intervention, and on occasion had needed two carers or nursing staff to hold him down when he was required, for example, to give a blood sample. The Judge considered he would have to be sedated to enable proper treatment to be given.

The potential adverse side effects of chemotherapy were also noted.

The Judge decided that if the treatment was offered to a 41 year old who did not suffer from a mental disability that person would want the treatment to try to extend their lives, which in this case might be for another 20 years.

The Judge noted it would be even more difficult for this man to undergo the treatment as he would not know why he was undergoing the treatment which would make it more distressing.

In reaching his decision the Judge said, “Nevertheless it is my view that were he able to form an opinion of his own, and knowing that he would suffer more distress than others, a man of his age, with 20 years of life ahead of him, who has been happy so far and is happy to date, would opt to take the risk, at least at the first instance and see how it went”.

For that reason, the Court appointed the Public Advocate as the guardian, notwithstanding the Judge fully understood the family’s position.

I do not know what the final outcome of his treatment was but this case certainly shows that families, carers, and indeed the Court, can find themselves having to deal with very difficult issues when considering the rights and needs of an incapacitated person.

Details: agoode@mellorolsson.com.au or (08) 8414 3400