Guardianship and medical treatment of mentally incapacitated adults

P E Scully

HK Pract 2001;23:10-15

Summary

Family Physicians sometimes have the dilemma of whether or not to treat the mentally incapacitated adults, when they cannot consent to treatment. They may be mentally handicapped, have a mental illness or dementia, and also have a chronic illness such as epilepsy, cancer or diabetes mellitus that they have to receive treatment.

n 1999, the revised Mental Health Ordinance was implemented. It empowers the physicians to give treatment to a mentally incapacitated adult who is unable to give consent, when such treatment is necessary and in the patient’s interests.

The new legislation also provides for the setting up of a quasi-judicial tribunal, the multidisciplinary Guardianship Board. Not all mentally incapacitated persons need guardianship. The Board may appoint a relative of the mentally incapacitated adult as guardian, with the power to consent to treatment. A relative has no legal power to consent or to refuse consent to treatment of the mentally incapacitated adult unless the Board has appointed him as guardian.

Introduction

The Guardianship Board was established in 1999 by the revised Mental Health Ordinance. The Board members consist of a chairperson or a lawyer who chairs the hearing, a doctor, psychologist, or social worker, and a person who has personal experience of mentally incapacitated adults.

The Board has jurisdiction to appoint guardians for the mentally incapacitated adults with mental disorder, such as mental illness or dementia, or with a mental handicap. For patients with acquired brain injury which has caused a cognitive dysfunction limiting the person’s mental capacity to make decisions in his personal life, such as accommodation, medical treatment or money, the Board can also make a guardianship order.

The Board’s criteria

Not every mentally incapacitated adult needs a guardian. The Board will make a guardianship order when it is satisfied with four criteria. The person is mentally incapacitated (psychiatric diagnostic threshold), and has a limited capacity to make decisions (functional and cognitive capacity assessment). So, it needs information on what kind of decisions the person has to make.

Decision specific capacity

Writers on capacity assessment1 emphasise the importance of a tribunal or court decision that a person lacks capacity, or is limited in his capacity. It limits the person’s autonomy, though for those with moderate or severe mental disabilities, they may have lost the ability to exercise that autonomy. As there is a legal presumption of capacity to make one’s own decisions, then Tribunals, Boards or doctors can only interfere if it is justified in law or ethics, such as beneficence or non-maleficence.

As an example, a person with limited financial resources may have the capacity to make simple decisions as to how to spend his Disability Allowance when most of it will go to pay the old aged home. But if he has a few bank accounts in different currencies, and some shares, then that is a more complex financial portfolio. He probably lacks capacity to handle it, and may also be more vulnerable to exploitation.

Need for guardianship

The other two criteria are the order must be in the interests of the patient’s welfare, and his particular needs may only be met by guardianship, as no other less restrictive or intrusive means are available. The Ordinance encourages informal arrangements. It also recognises the principle of normalisation, which encourages people with mental disabilities to enjoy the same rights as other persons in the community.

However, informal substitute decision making by family or carers on behalf of the mentally incapacitated adult may no longer be fulfilling the mentally incapacitated adult’s needs.

Most people under guardianship have a serious disability, such as mental handicap, dementia, stroke, or schizophrenia with a history of non-compliance with treatment.

Grounds for application

The grounds for applying for a guardianship order are that the mentally incapacitated adult is suffering from a mental disorder or handicap of a nature or degree, which warrants a guardianship order, and that it is in the interests of his welfare that the order be made.

Guardian’s powers

Recognising the principle of normalisation, and to encourage mentally incapacitated adults to make decisions in areas of their life where they have retained capacity, an appointed guardian has limited powers. So, it is not analogous to a parent and child relationship. The guardian may be granted the following powers:–

1. require the mentally incapacitated adult to reside at a specified place e.g. an old aged home;
2. convey him to e.g. a hospital or old aged home, and use reasonable force if necessary;
3. require him to attend for treatment, occupation, education or training;
4. give consent to his medical or dental treatment but only to the extent that the mentally incapacitated person is incapable of understanding the general nature and effect of such treatment;
5. require access to the mentally incapacitated adult to be given to any doctor, approved social worker or other person specified in the order; and
6. hold, receive or pay a monthly sum (presently a maximum of $10,000) for the maintenance or other benefit of the mentally incapacitated adult.

Consent to medical treatment

The most significant power for physicians is the guardian’s power to consent to treatment, which is complimentary to the physician’s powers under the new Mental Health Ordinance. It allows the physicians to treat a mentally incapacitated adult who cannot consent to necessary treatment. The patient may not understand the general nature and effect of treatment.

The doctor will assess the person’s ability to consent to the specific treatment. Such ability is treatment specific. For example, the patient may be able to consent to treatment for a respiratory infection but not to a mastectomy. On advising the patient, his medical condition, the treatment, its benefits, risks, and any alternatives, the doctor can determine whether he can understand the nature and effect of that treatment.

Physician should interpret the new law in a practical and reasonable way so that most mentally incapacitated patients do not need a psychiatrist to confirm that they are mentally incapacitated before receiving treatment for a physical disorder without their consent. Physicians should not interpret the new law as disallowing them to treat unless the mentally incapacitated adult has an appointed guardian. Even if the patient is new, the patient himself or his family member will share the background history, which can give a picture of mental handicap, acquired brain injury or mental illness.

The best interests test is defined as treatment that will save the mentally incapacitated adult’s life, prevent damage or deterioration, or bring about an improvement, to his physical or mental health and well being. Special treatment for sterilisation, however, can only be carried out with an order of the Court of First Instance (the former High Court). A recent amendment to the Mental Health Ordinance forbids organ donation from a living mentally incapacitated person.

Urgent/non-urgent treatment

The new law draws a distinction between urgent or nonurgent treatment. A doctor can give urgent treatment, without the consent of the mentally incapacitated adult, his guardian or the Court of First Instance, if the treatment is necessary and in the patient’s best interests. A doctor can give nonurgent treatment without the mentally incapacitated adult’s consent if reasonable steps have been taken and find that:

1. there is no guardian; or
2. it appears that no guardian has been appointed; or
3. the guardian has not got the power to consent.

The “reasonable” steps to find whether there is a guardian depend on the severity of the illness, and the time of the day. If it is outside office hours, the physician should exercise his professional discretion as to what is reasonably practicable, and whether he should proceed with treatment or postpone it, until there is clarification of the position. The Guardianship Board emphasises that the mentally incapacitated adults should not be deprived of treatment just because they are unable to consent.

The mentally incapacitated adult is usually accompanied by a family member when seeing a doctor. Whether the Guardianship Board or the court has made a guardianship order is usually known to the family or the carer. Most mentally incapacitated adults do not have a guardianship order. If there is an order, the doctor can seek proof from the purported guardian. The order will state whether the guardian has the power to consent to the patient’s medical treatment. If it is not known whether there is an order, the physician can check with the Guardianship Board or the Guardianship Office.

Guardian’s responsibilities

The Guardianship Board will only appoint a person to be a guardian, who will cooperate with the treatment plan for the mentally incapacitated adult. This is illustrated by some examples below. The law also provides that the guardian must promote the interests or the welfare of the mentally incapacitated adult and respect his views and wishes, but he can override them if it is in his best interests.

In particular, the guardian must ensure that the mentally incapacitated adult will not be deprived of treatment because he lacks the capacity to consent. The guardian must also ensure that the treatment is carried out in his best interests. A physician or other person may seek a court order from the Court of First Instance when the guardian is unable or unwilling to consent, or the guardian has failed properly to observe the principles set out above. Before issuing such proceedings, the guardian or physician can approach the Guardianship Board to see if it can assist to resolve the matter, by issuing say directions to the guardian which explain his powers and duties.

Role of family/carer

When a mentally incapacitated adult lacks capacity to consent, his family does not have legal power to consent, or object to treatment. When treatment is necessary and in his best interests, and he lacks capacity to consent, it is not legally necessary to get the written or oral consent of his family or his carer. However, it is good clinical practice to seek their support for the treatment. To have a consent form signed by the family or carer does not protect a physician from being sued for negligence, if his treatment has been negligent.

Refusal/objection to treatment

In common law, a mentally incapacitated adult lacks capacity to refuse treatment if:–

1. he is unable to understand and retain important treatment information, especially as to the likely consequences of having or not having the treatment;
2. he does not believe the treatment information; and
3. he is unable to use this information and weigh it, by balancing its risks and benefits, to arrive at a decision to refuse treatment.

A physician can use his discretion to give treatment if the mentally incapacitated adult lacks capacity to consent and he is objecting or refusing treatment. If the physician chooses not to give treatment, he may advise the carer or a family member to apply for guardianship. The best interests of the mentally incapacitated adult should be promoted, if there is any conflict between his interests and that of his family or carer.

A relative has no legal power to consent or to refuse consent to treatment of the mentally incapacitated adult unless the Board has appointed him as guardian. So the physician may suggest that relative to apply for guardianship. Physicians are faced with a dilemma when the family objects to the proposed treatment, which is considered by the family to be painful or ineffective.

When the relative does not support the proposed treatment plan and the mentally incapacitated adult lacks capacity to consent, a physician may have concerns in treating the patient. In that situation, he may suggest the relative to apply for guardianship, or that the application be taken by a social worker from the Social Welfare Department or from the Non Government Organisation actually caring for the mentally incapacitated adult.

The Board does not have power to order that treatment proceed, but it will appoint an appropriate person as guardian who can consent to treatment when the mentally incapacitated adult lacks capacity.

Processing of guardianship application

A guardianship application must have two medical reports attached. One comes from a doctor approved by Hospital Authority as having experience in mental disorder, or in assessing mental handicap. The other medical report can be completed by the family physician. The forms are available from the Guardianship Board Secretariat.

Once a valid application is filed with the Board, it requests a social enquiry report (SER) from the Social Welfare Department. The Department will have four weeks to prepare a report on the views and wishes of the mentally incapacitated person, and to have an assessment of his family background, social and financial situation. Once the report is filed in the Board, the hearing will take place two weeks later.

Urgent guardianship application

If there is an urgency in appointing a guardian, e.g. surgery has been delayed pending the appointment of a guardian, then the Board may shorten the time limits for the preparation of the SER and hearing.

Hearing

Three members of the Guardianship Board hear the application at the hospital or old aged home where the mentally incapacitated adult stays. Usually the doctors who completed the reports will not be required to attend. The hearing adopts more of an informal role than a court with the parties rarely legally represented. The strict rules of evidence are not followed. The decision of the Board is given orally to the parties on the same day. The parties can appeal the order to the Court of First Instance.

Sample of guardianship cases

These sample cases of the Board illustrate the need for guardianship.

1. Decisions on money and bills

An old lady with a stroke causing cognitive dysfunction and dysphasia was currently in hospital. The reason for the order was the bank had frozen access to her accounts as she had lost capacity to manage them. She owed hospital bills and a deposit was needed for the Care and Attention home. The guardian was allowed to withdraw up to $10,000 per month from her accounts into a guardian’s account which would be used only for her maintenance and benefit.

2. Placement decisions

An adult with vascular dementia objected to be placed in an old aged home. The doctors and social workers agreed that it was risky for him to return to live on his own. By law he could not be forcibly placed in such a home unless a guardian was appointed to consent to the placement. The guardian was given the residence power. However, if the patient was compliant about placement, then he could be placed in the institution without a guardianship order.

3. Mentally incapacitated adult refuses/objects to treatment

There had been several cases where mentally handicapped adults refused examination, particularly if it was a rectal or vaginal examination. A moderately mentally handicapped woman with global aphasia, who resided in a hostel, resisted a gynaecological examination and lacked capacity to consent or to refuse consent. Understandably, the physician did not proceed with the examination despite her powers under the Mental Health Ordinance. As she had no family, the Director of Social Welfare was appointed as guardian who could consent to such examination or any follow up treatment. The guardian was only granted powers to consent to treatment and arrange her attendance for treatment.

4. Refusal/objection to medical treatment by relative of mentally incapacitated patient

A 75-year-old woman with dementia fractured her hip. Her only daughter objected to surgery as another relative had died after receiving anaesthesia. There was also an issue whether the daughter was suffering from a mental illness. Understandably the doctors were not prepared to operate by using the Mental Health Ordinance. The Director of Social Welfare was appointed as guardian, as there was no one else in the family available or suitable.

5. Family disputes about care, treatment and management of mentally incapacitated adults

Family physicians who treat patients in Care and Attention Homes may encounter cases of disagreements between the mentally incapacitated person or his relatives with the staff of the home. Sometimes, the Guardianship Board hearing resembles a custody dispute between parents in the Family Court, as the adult children of a parent with a stroke or dementia argue with each other or with professionals over his care, treatment and management.

In one case, the dispute was about an 80-year-old man with dementia. The eldest son was in conflict with the rest of the siblings on the care of Dad, where he should live and who should pay for his expenses. The siblings alleged that the son had misused the father’s money and property. The Director of Social Welfare was appointed as a last resort because of the family conflict.

6. Abuse of elderly mentally incapacitated adults

This is an increasing problem but it is hard to detect. Sometimes professionals feel helpless as they think that the abuser has some kind of legal power over the mentally incapacitated adult. The Board has power to make emergency orders when a mentally incapacitated adult is in danger, or is being or likely to be maltreated or exploited and it is necessary to make immediate provision to protect him.

In one case, the son abused his power over an 83-yearold woman with severe dementia in a Care and Attention Home. Though he had threatened the staff, the police had insufficient grounds to arrest him. He also argued with his sisters about the mother’s care and treatment, insisting on handling her medication and refusing to allow the staff administer it. He refused to allow her use diapers during the day or to use a hospital type bed, despite her falling out of bed at times. He refused to let the local Community Geriatric Assessment Team (CGAT) treat her. He was a guarantor for the charges for the Home and the staff thought incorrectly that this gave him the same legal powers as a guardian.

Even though the sisters applied to be guardians there were concerns that this would make the conflict worse. So, the Director of Social Welfare was appointed. Special conditions were attached to the order that forbade anyone taking the mentally incapacitated adult outside the Home without the permission of the guardian, and access by the son to his mother was allowed only if he did not interfere with the guardian’s exercise of his powers. On renewal of the order, it was reported that the relationship between the siblings had improved and more importantly the staff were able to ensure that the mother’s welfare was better catered for by having the local CGAT visit her regularly, got a hospital bed for her, and she wore diapers for her incontinence.

So, guardianship can ensure treatment can be carried out for the mentally incapacitated adults when there are difficulties in obtaining consent, and doctors do not feel they can use their discretion to treat them. It can also be used to protect the mentally incapacitated adults against abuse, ensure that they are placed appropriately and that their money is managed.

Editor’s Note: Details of legal references are available from the corresponding author on request.