Category: Health Law Updates

The article reported on research from the University of Tasmania. In a nutshell, this is what it said:

• The rate of prescribing antipsychotic mediations appears to have decreased
• The rate of prescribing benzodiazepines to control agitation or anxiety has increased
• The use of antidepressants to sedate those with dementia is widespread
• Non-pharmacological means of responding to behaviours must be a first option
• Benzodiazepine drugs were being prescribed on an ‘as needed’ basis, creating a risk of being administered too much

On 24 April 2018, the ABC Radio program the ‘Law Report’ aired a piece on medication as a restraint in the aged-care sector. This followed a Human Rights Watch report from the United States on the rates of Antipsychotic prescriptions in nursing homes and aged care facilities in the US.  As is the case in Australia, there are alarmingly high rates of administration of antipsychotic medications which are dangerous and may not be clinically indicated. The ABC reported that some of these medications have a warning that within 10 weeks of using it, a person’s risk of death almost doubles. There are indications that these types of medications are being administered for convenience of staff to control a person’s behaviour, rather than because of a clinical need.

The bedrock of health and medical treatment is consent.  You must give permission to the health practitioner to administer a medication or give treatment.

In 1914 a famous American judge said “Every human being of adult years and sound mind has a right to determine what shall be done with his [or her] own body; and a surgeon who performs an operation without his [or her] patient’s consent commits an assault”.  This has been quoted many times by Australian judges and so forms part of Australian law.

The law recognises that if a doctor or nurse administers medical treatment without the consent of the patient, they have committed an assault.  When there has been consent, the consent has the effect of making the physical contact lawful.

Many of you will have heard of the phrase ‘mental capacity’. This refers to a person’s decision making skills. It is more commonly referred to now as decision making capacity. In relation to medical treatment, the law has established numerous principles:

• A person is presumed to have decision making capacity unless shown otherwise.
• Mental capacity is decision specific. Just because a person lacks decision making capacity to decide about one thing does not mean they lack mental capacity for all decisions.
• A person should be supported to make a decision and to exercise their own free will.

Just because a person has dementia does not mean they lack decision making capacity, though given the nature of the various types of dementia, it is likely that a person will not have decision making capacity for a lot of things. But, just because a person with dementia may not have decision making capacity does not mean a doctor or nurse can administer any medication or treatment to them.  Any treatment given without a valid consent is unlawful and is an assault.

Treatment can be administered to a person without decision making capacity where:

• The person has made a health directive indicating they consent to having the treatment; or
• The person has appointed an Enduring Power of Attorney to make health decisions, and the Attorney consents to the treatment; or
• A Guardian has been appointed by a Tribunal to make health decisions, and the Guardian consents to the treatment; or
• When there’s no Attorney or Guardian, a domestic partner, carer, close relative or close friend can consent (provided special rules are followed); or
• Emergency situations.

Did you know that when a medication is administered to someone with a mental illness who does not have decision making capacity, it can only be given in accordance with special legislation? In the ACT, this is the Mental Health Act 2015. It remains illegal to administer a medication or treatment to a person to treat a mental illness or symptoms of a mental illness, unless certain criteria under the Mental Health Act are met. Yet in nursing homes there is no special law about the administration of drugs to control or manage behaviours/symptoms of dementia.

Oversight provisions such as the Mental Health Act are imperative to ensuring treatment is only provided to a person without decision making capacity to control their behaviour in limited and special circumstances. This reflects the importance of the fundamental right we all have to be free from interference with our own body. There is no equivalent law for nursing homes.

Administering treatment without consent has criminal and civil consequences.  In civil law, it constitutes what’s called a battery (assault).  A person may claim for compensation from the person who committed the battery.   For a person with dementia, a litigation guardian can be appointed to conduct a claim on their behalf.

Depending on the exact circumstances of each matter, these general features will need to be present:

1. Administration of a medication to a person without decision making capacity; and
2. No other person who was eligible to give consent gave consent for the medication to be administered.

This depends on the actual circumstances. If a person was injured after the medication was administered, such as having a fall or experiencing a side effect, then compensation may be awarded for that. Claims for ‘aggravated damages’ may be made as this type of compensation may be awarded where the gravity of the conduct of the person who did the assault is so bad that compensation awarded for pain and suffering and additional treatment are not adequate. In circumstances where a nursing home does not try to obtain consent at all, it is possible aggravated damages may be awarded.