Re Langham[2005] QSC 127

SUPREME COURT OF QUEENSLAND

1. The first respondent is criminally insane. Because plain speaking is now discouraged he is described as a ‘forensic patient’ for the purposes of Chapter 7 Part 7 of the Mental Health Act 2000 (Qld) (‘MH Act’).  He has been confined in an asylum (an ‘authorised mental health service’) since about 1997.  He suffers from paranoid schizophrenia, which has resisted all attempts at treatment.  He remains without insight, seriously deluded and psychotic.  Although he is relatively well behaved in hospital his condition is such that if he were discharged he would probably commit further acts of criminal violence.

2. The first respondent is presently detained in The Park Centre for Mental Health, which is owned and operated by the second respondent, who was represented on the application by the Crown Solicitor and Mr Tait SC. The third respondent is the Director of Mental Health who manages the psychiatrists who treat, and the psychiatric services which care for, the first respondent.

3. The first respondent’s pervading delusion is that he is the subject of a conspiracy dedicated to his detriment. The conspirators include all the psychiatrists who have ever treated him. Since December 2001 he has, at various times, refused to eat or drink. His principal motive for this abstinence is the deluded belief that when he dies an investigation into his death will reveal the existence of the conspiracy, and bring about the prosecution of the conspirators. The refusal to accept nourishment is, obviously, irrational and a consequence of the first respondent’s psychotic belief system and mental processes.

4. From time to time in the past when the first respondent refused to eat he has been forcibly fed. There are difficulties, both medical and ethical, in forcibly feeding the first respondent over a prolonged period. A dispute has arisen between the applicant on the one hand, and the second and third respondents on the other, as to the appropriate person to decide whether the first respondent should be given nutrition against his wishes and by force. The applicant is the relevant health attorney for the purposes of the Guardianship and Administration Act 2000 (Qld) (‘GA Act’).  None of these parties wishes to undertake the responsibility.  The applicant seeks, in effect, a declaration that the second and/or third respondents should do so.  They say the applicant should bear the responsibility.

5. Although named as the first respondent, Mr Langham did not appear and is incapable of giving instructions. He was represented by Mr Devereaux for the Director of Legal Aid Queensland, who was appointed the separate representative of the first respondent on 25 February 2005 by an order of the Guardianship and Administration Tribunal (‘the Tribunal’) exercising power under section 125 of the GA Act.   Mr Devereaux’s submissions reflected the difficulty of the Director’s position but tended to support the position of the other respondents.

6. The facts relevant to the application have been agreed and I set some of them out below:

1. Geoffrey Alan Langham (“Langham”), currently aged 57 years, has been the subject of a forensic order under section 288 of the MH Act 2000 since 25 August 1997, following a finding of unsoundness of mind in relation to charges of possession of a dangerous drug and going armed in public in such a manner as to cause fear.  Langham has been detained as an inpatient of the high security unit of The Park Centre for Mental Health (the Park) during this period except for the period 2000-2001 when he absconded interstate. 

2. Langham has treatment-resistant schizophrenia of the paranoid subtype.  He has suffered from a severe and treatment-resistant schizophrenic illness since at least the mid-1980s.  This illness is characterised by grandiose and persecutory delusions featuring a persistent belief in a vast conspiracy against him which involves all psychiatrists who have treated him.  Langham has not responded to significant trials of antipsychotic medication and has received several courses of ECT with only a short lived and marginal benefit.

3. Langham’s stay at the Park has not only been characterised by treatment resistance but by his refusal since May 2002 of any oral medication.  When involuntary treatment has been enforced, Langham has responded with extensive and at times life-threatening protests.  In December 2001 Langham stopped all oral intake and expressed a desire to die.  He returned to eating shortly thereafter but in June 2002 again refused food and fluids.  He once again returned to eating but in January 2003 there was another brief hunger strike followed by a period of eating.  There was a further refusal of food in March 2003 but again a return to eating in May 2003. 

4. Langham is psychotic to a dangerous extent with delusional thinking which fuels a psychotic rage.  His refusal to accept food is driven by a psychotic, psychiatric condition.

5. The Adult Guardian first provided health care consent on behalf of Langham, as Statutory Health Attorney of last resort, on 20 June 2003. 

7. Langham has refused all meals since April 2004 when he was moved to a more restricted ward after an attempted assault on a female nursing staff member who he believed was mocking and persecuting him.  He has also expressed the intention of killing someone to “get respect.”  In May 2004 the depot Risperidone was ceased as there was no discernable improvement in his condition and there has been little change in his mental state and presentation since that time.  Langham survived in the months from April 2004 to July 2004 on milky coffee with large amounts of sugar.   

8. In July 2004, there was concern about Langham’s continued weight loss.  Between Easter and July 2004, his weight dropped from 94 kgs to 73 kgs.  On 22 July 2004 the Adult Guardian consented to the insertion of a nasogastric tube (NGT) for the purposes of giving artificial hydration and nutrition.  This consent was pursuant to section 63(2) of the Powers of Attorney Act 1998 (Qld) as statutory health attorney of last resort.

9. On 26 July 2004, Langham was admitted to the Ipswich Hospital as his physical state deteriorated due to lack of nutrition and dehydration before the consent was acted upon.  The NGT was inserted there and after five days he returned to the Park. 

10. Since July 2004, Langham passively accepted nasogastric feeds.  However, from November 2004 he became increasingly opposed to the procedures involved in re-feeding, particularly the practice of aspirating fluid from the tube before each feed to check the position of the tube.  In order to maintain his hydration and nutrition, Langham required feeding three times a day with the procedure lasting 30 minutes each time.  This procedure meant that up to five nursing staff and a doctor were required to re-insert the tube. 

11. In late November 2004, Langham refused aspiration prior to feeding.  His subsequent assault on a nurse led to the recommencement of Zuclopenthixol depot medication and seclusion. 

12. Nasogastric feeding has complications attached to it.  Its cessation also carries risk.  Dr Lisa Ryan, physician from the Ipswich Hospital, set out these risks in a report dated 16 December 2004.  Dr Ryan stated:

‘Should nasogastric feeding be ceased, and Mr Langham reverts to drinking only water and sugary, milky coffee, he would eventually develop significant protein and calorific malnutrition and vitamin deficiency states.  This process would take several months to manifest overtly and would cause symptoms and signs such as weight loss, apathy, fatigue, and irritability, muscle weakness, declining mobility and increased susceptibility to infections particularly respiratory.  Previously on this restricted diet he lost 19kgs in three months (from 93 to 74kgs) and I would expect a similar decline again.

His current regimen of Nutrison feeds does provide all his dietary requirements.  Mr Langham has recently refused the more frequent feed initially recommended and is accepting twice daily feeds only……”.

13. Dr Ryan further advised that NGT feeding is recommended as a short term, i.e. less than six weeks, method of dietary supplementation or replacement and is not usually recommended as a longer term of feeding as it has a number of complications.  These complications are both mechanical and gastrointestinal.

16. Dr Ryan reviewed Langham’s management plan and stated that if the decision was made to continue NGT then she believed that the current plan was the best compromise in terms of ensuring adequate calorie intake whilst minimising the trauma to Langham, provided however that Langham does not “actively oppose the procedure.”

17. In February 2005, two applications were made to the Guardianship and Administration Tribunal (“the Tribunal”): an application for the appointment of the Adult Guardian as guardian and an application by the Adult Guardian for directions as to whether the artificial nutrition and hydration (“ANH”) being given against Langham's will should be consented to under the GA Act or the MH Act, as he is a forensic patient.

18. On 25 February 2005, David Thompson, from Legal Aid Queensland, was appointed as Langham’s separate representative pursuant to the provisions of section 125 of the GA Act. 

19. An application for legal aid was needed to facilitate appointment of a separate representative.  Pursuant to Legal Aid Guidelines, consent for the application was required by the applicant for legal aid.  As Langham could not provide that consent, the Tribunal made an Interim Order dated 24 February 2005 appointing the Adult Guardian as guardian for legal matters not relating to finance or property, which was revoked on 15 March 2005. 

20. On 15 March 2005, the Tribunal:

(a)Declared that pursuant to section 146 of the GA Act, Langham does not have capacity for health matters; 

(b)Declared that pursuant to section 82 (1)(d) of the GA Act, the Adult Guardian is Langham’s statutory health attorney.

(c)Ordered that the Director of Mental Health be joined as an active party under section 110(1)(b) and section 110(2) of the GA Act.

(d)Ordered that the Application by the Adult Guardian for Directions be transferred to the Supreme Court of Queensland in accordance with section 241(2) of the GA Act.

(e)Ordered that the Application in relation to the appointment of a Guardian be adjourned to a date to be fixed after the determination by the Supreme Court.

22. Langham ceased taking artificial nutrition through the NGT on 17 March, and water on 20 March 2005. The Adult Guardian gave consent to the insertion of the intravenous line and fluids through the line, and if possible, the re-insertion of the NGT, and Midazolam, a sedative to assist the re-insertion, on 21 March 2005.  Langham objected to the NGT being re-inserted on 21 March 2005 and it was not re-inserted.

23. As a result of the cessation of ANH via the NGT, and concerns that there would be difficulties continuing intravenous fluids due to Langham’s venous access being poor, and expert advice that intravenous ANH via a central or PIC (peripherally inserted central)  line would not be a good option, the Adult Guardian gave consent on 24 March 2005 to a Percutaneous Endoscopic Gastrostomy (PEG) being inserted by general anaesthetic, which would be inserted on 30 March 2005 at Ipswich Hospital.  This consent was provided on the basis that the Adult Guardian had been advised by the medical staff that to proceed with inserting the PEG, in these circumstances, would be consistent with good medical practice. 

27. On 6 April 2005, Langham resumed normal feeding and drinking. This was as a result of a negotiated agreement that Langham would not receive psychotropic medication, would be given a television and would be moved to another less restrictive ward.

28. Despite resumption of normal feeding and drinking, the parties are concerned as to whether this state of affairs will continue in the future having regard to Langham’s past history of refusing to eat or drink.

7. Section 115 of the GA Act allows an application to be made to the Tribunal for a direction in relation an adult ‘about something in, or related to, the’ Act.  The application which was brought to the Tribunal sought an answer to the question:

‘Whether artificial hydration and nutrition … is:

• Treatment for (the first respondent’s mental disorder … and thus consent … should be under the Mental Health Act 2000, or
• Health care because he requires ANH to treat his loss of weight and … consequences of not eating … and thus consent should be pursuant to the Guardianship and Administration Act 2000.’

8. As the agreed facts noted the Tribunal transferred the application to the Supreme Court. Section 241(2) of the GA Act provides that:

‘The tribunal may, if it considers it appropriate, transfer a proceeding within the court’s jurisdiction to the court.’

‘Court’ means the Supreme Court.

9. What is sought by the application is, as I mentioned, a judicial construction of the relevant terms of the MH Act and/or the GA Act to determine on whom rests the responsibility for deciding whether the first respondent should be forcibly nourished.  This is clearly a matter within the jurisdiction of the Supreme Court and the Tribunal’s order transferring the proceedings was valid.

10. The application was conducted with considerable efficiency and helpfulness. The parties settled the terms of five questions which they asked the court to answer by reference to the construction of the two Acts. The questions were:

‘1.Is the provision of artificial hydration and nutrition (‘ANH’) to Langham:

(a)“Treatment” under the Mental Health Act 2000 such that a decision to give ANH is one which can be made pursuant to that Act;

(b)“Health care” under the Guardianship and Administration Act 2000 such that a decision to give ANH is one which can be made pursuant to that Act.

2. If ANH is both “treatment” under the Mental Health Act 2000 and “health care” under the Guardianship and Administration Act 2000, which Act is the relevant Act for the purposes of providing ANH to Langham.

3. If ANH is “treatment” under the Mental Health Act 2000, do the compulsory treatment provisions of that Act oust the operation of the consent provisions of the Guardianship and Administration Act 2000 and the Powers of Attorney Act 1998 in relation to patients under forensic and involuntary treatment orders.

4. If ANH is “health care” under the Guardian and Administration Act 2000, can any consent given under that Act operate in view of the provisions of s.67 of that Act, and Langham’s objections to receiving ANH.

5. If the answer to question 4 is no, can consent to ANH be given by the Supreme Court pursuant to its parens patriae jurisdiction, such jurisdiction being preserved by s.240 of the Guardian and Administration Act 2000.’

11. The parties’ submissions focussed principally upon the terms of the MH Act. 

12. The first respondent was confined as a restricted patient in a mental hospital pursuant to an order of the Mental Health Tribunal exercising jurisdiction under the (repealed) Mental Health Act 1974.  By section 580 of the MH Act such an order by the Mental Health Tribunal is taken to be a forensic order made by the Mental Health Court pursuant to the provisions of Chapter 7 Part 7 of the MH Act. 

13. Section 288 of the MH Act provides that the Mental Health Court may make an order that a person such as the first respondent ‘be detained in a stated authorised mental health service for involuntary treatment or care.’  This is a forensic order.  The first respondent is, by virtue of section 580 of the MH Act, the object of such an order.  By section 293 the first respondent may be detained in the hospital until he ‘ceases to be a forensic patient.’  This has not happened.

14. Importantly section 517 of the MH Act which ‘applies to a patient under… [a] forensic order’ provides that the first respondent (as a person under a forensic order) may be treated for his mental illness ‘without… (his) consent… or (that of) anyone else’.  The parties agree that this provision overrides the requirements of the GA Act that the consent of the applicant, or his health attorney, is necessary if he lacks the mental capacity to give the requisite consent and is to be treated for his mental illness. 

15. The debate centred upon whether forcibly feeding the first respondent is treatment for the purposes of the MH Act.  If it is then section 517 clearly makes the consent of any guardian irrelevant and unnecessary.  If such feeding of the first respondent does not constitute treatment then the consent of the applicant as default health attorney for the first respondent will be necessary.

16. Schedule 2 to the MH Act contains its dictionary.  ‘Treatment’ is defined as ‘… anything done, or to be done, with the intention of having a therapeutic effect on the person’s illness.’ ‘Therapeutic’, according to the Macquarie dictionary definition, means that which relates to the treatment or curing of a disease, or ‘curative’.  The evidence establishes that nothing will cure the first respondent’s schizophrenia.  It is of that rare form which is resistant to all known remedies.  No known psychotropic drug will diminish or remove Mr Langham’s delusions, or provide him with any glimmer of realisation that his world is entirely delusional.  Certainly providing him with bodily sustenance will not do so. Therefore the respondents argue that feeding the first respondent is not intended to have a therapeutic effect, and is not treatment for the purposes of the MH Act.

17. I cannot accept such a dismal solution. Treatment must, I think, encompass more than those measures which are purely curative. To state the obvious, measures taken to address the symptoms of a disease are part of its treatment though their function is to reduce the patient’s suffering and distress rather than to cure the disease. Measures taken to lower a fever or dull pain will not cure the underlying causes of those symptoms but are on any sensible view of what constitutes treatment, part of it. Palliative care given to a dying patient is treatment for the terminal stages of the disease, although the care will not arrest the course of the disease. If one must accommodate the position within the statutory definition of treatment it can be done. Treatment is anything done with the intention that it have a therapeutic effect. An effect will be therapeutic if it relates to, is connected with, measures taken to cure the disease. The alleviation of suffering is so connected.

18. Schizophrenia is the product of a malfunction of part of the brain, probably chemical in origin. The symptoms of the malfunction are, in this case, deluded thoughts. The existence and content of those thoughts can only be ascertained by the first respondent’s behaviour which is shaped by the delusions, and by his explanation for his conduct. It is impossible to distinguish between the deluded thought and the action it generates. Both are symptoms of the schizophrenia.

19. The conduct in question, the fruit of the delusion, is the rejection of food and drink. To supply the first respondent with sustenance, even against his will, is to treat a symptom of his disease. It is therefore treatment as defined by the MH Act:  it is done with the intention of alleviating his suffering, which is therapeutic.

20. The respondents oppose this view. They do see a distinction between the symptoms of mental illness and the consequence of those symptoms. They seek support for their argument in the evidence of Dr Schramm, the psychiatrist who has been in charge of the first respondent’s care for some time. Dr Schramm’s opinion was that the forcible feeding was not treatment ‘administered primarily with the intention of treating his mental illness’ but was treatment for a complication or consequence of that illness. Dr Schramm explained his reluctance to accept that Mr Langham’s refusal to eat was a symptom of his illness:

‘… we are treating his lack of hydration and lack of nutrition that has resulted because of his mental illness … But it is not a symptom itself.  His thinking and the reasoning for why he is not eating … involve the idea that he believed that if he was to die, there would be an inquiry …’. 

The doctor agreed that the decision not to eat is part of the psychosis and that a consequence of the decision is that, without intervention, the first respondent will “waste away and die.”

21. Late in his evidence Dr Schramm conceded that the distinction between the symptom (delusion) and its consequence (the decision not to eat) was akin to ‘hair splitting’ and that ‘one could argue that it is a symptom … (depending on) how you define a symptom.’ Dr Schramm thought that ‘the true symptom of the schizophrenia is the delusion.’ He agreed that forcibly feeding the first respondent is a treatment for the consequences of his mental illness.

22. Some other facts should be mentioned. If the first respondent does not eat or drink he will become physically ill – dehydrated and malnourished. The forcible feeding of the patient is a prophylactic measure designed to prevent that physical debility which will inevitably occur in the absence of nutrition.

23. The opinion of two other psychiatrists should be noticed. Dr Varghese wrote in a report of 21 December 2004 to Dr Schramm:

‘… the insertion of a nasogastric tube is not required for the treatment of a physical problem or illness.  …  The only illness present is a mental illness resulting in the patient refusing nourishment.  The use of a nasogastric tube is required for the overall psychiatric treatment of the patient in the same way as one would use an IV drip to rehydrate a profoundly depressed patient who had not taken fluids because of the level of depression.  …  Rather (Mr Langham’s) health is compromised indeed with the possibility of death as a result of a mental illness giving rise to the possibility of physical compromise.’

Dr Allan, the Acting Director of Mental Health, wrote in a report to Dr Schramm on 24 December 2004:

‘… His decision to stop eating and die is clearly based upon a delusion … 

‘I … feel that his capacity to appreciate the risks of his decision not to eat and drink … (is) impaired by his psychosis.

‘…  There is no question that his mental illness is the cause of his problem, i.e. not eating and drinking … 

‘Feeding is necessary as it is prophylactic … to prevent the development of further psychiatric conditions, i.e. delirium, malnutrition. 

‘… One part of the treatment that this man needs to receive and does receive in a psychiatric hospital, is mileau therapy, that is, he is encouraged to normal behaviour such as normal methods of eating and drinking, hygiene etc.  Offering him food … is a part of that general psychiatric treatment and I would see that as more than just attending to his basic needs.  It is … a demonstration of appropriate behaviour.’

24. These latter considerations make it impossible to accept Dr Schramm’s distinction between symptom and consequence. The distinction is, as he recognised, overly refined. It is, I think, artificial.

25. As a matter of philology the first respondent’s refusal to eat is a symptom of his schizophrenia. A symptom, according to Blakiston’s Gould Medical Dictionary, Third Edition, is ‘a phenomenon of physical or mental disorder … which leads to complaints on the part of the patient ...’.  A phenomenon is, of course, an observable occurrence.   A delusion, a thought, is not observable.  What is observable is the patient’s behaviour in response to the delusion, which may take many forms.  If the behaviour is harmful, as it is in this case, the means taken to prevent a patient acting out the delusion will be treatment for the symptom and therefore for the illness.

26. There are indications in the MH Act itself that treatment is intended to cover more than administrations given to a patient only for the purpose of curing disease.  Chapter 4 Part 3 of the MH Act is entitled ‘Regulated and Prohibited Treatments, Seclusion and Restraint’.  Division 3 deals with mechanical restraint.  It is defined as the use of a mechanical appliance which prevents the free movement of a patient’s body or limb.  The division places limits on the use of restraint as a treatment and prohibits its use save in accordance with the terms of that division.  Section 143 however makes it clear that restraint is a method of treating a mentally ill patient.  Division 4 deals with seclusion which is defined to be the confinement of a patient alone in a room from which there is no ‘free exit’.  Similarly this division prohibits the use of seclusion except in accordance with the safeguards it sets out.

27. Clearly, measures of physical restraint or confinement do nothing to improve a patient’s mental illness. They have no curative effect; they are extreme forms of controlling psychotic behaviour. Their sole purpose is to prevent a patient from harming himself or others. Nevertheless the MH Act regards them as ‘treatment’. 

28. There are some statements in decided cases which support the view that treatment is wider than the merely curative. B v Croydon Health Authority [1995] Fam 133 is a case with some similarities to the present.  B was a young woman suffering a psychopathic disorder, a symptom of which was a compulsion to harm herself.  While detained in a mental hospital she stopped eating in an apparent attempt at self-harm.  The only known treatment for her condition was psychoanalytic psychotherapy.  The medical authorities forcibly fed B to prevent her death.  She sought a declaration that the feeding was unlawful.  Hoffman LJ said (at 138-139):

‘That brings one back to the question of whether tube feeding would have been treatment for the mental disorder …  Ms B suffers from a psychopathic disorder which … is incapable of treatment except by psychoanalytical psychotherapy.  How can giving her food be treatment for that disorder?  …  It may be a prerequisite to a treatment for mental disorder or it may be treatment for a consequence of the mental disorder, but it is not treatment of the disorder itself … 

‘This is a powerful submission.  But I have come to the conclusion that it is too atomistic.   It requires every individual element of the treatment being given to the patient to be directed to his mental condition.  But in my view this test applies only to the treatment as a whole … 

‘It does not however follow that every act which forms part of that treatment within the wide definition in section 145(1) must in itself be likely to alleviate or prevent a deterioration of that disorder.  Nursing and care concurrent with the core treatment or as a necessary prerequisite to such treatment or to prevent the patient from causing harm to himself or to alleviate the consequences of the disorder are in my view all capable of being ancillary to a treatment calculated to alleviate or prevent a deterioration of the psychopathic disorder.’

Neill LJ said (at 141):

‘I am satisfied that the words in section 63 … “any medical treatment given to him for the mental disorder from which he is suffering” include treatment given to alleviate the symptoms of the disorder as well as treatment to remedy its underlying cause.  In the first place it seems to me that it would often be difficult in practice for those treating a patient to draw a clear distinction between procedures or parts of procedures which were designed to treat the disorder itself and those procedures or parts which were designed to treat its symptoms and sequelae.  In my view the medical treatment has to be looked at as a whole and this approach is reinforced by the wide definition of “medical treatment” in section 145(1) as including “nursing” and also “care, habilitation and rehabilitation under medical supervision.”’

29. The respondents submit that these remarks have no application because of the different definition of treatment found in the MH Act which does not include the administrations identified in the English legislation.  The criticism is unfounded.  As I read the judgments the decision did not turn upon the precise legislative definition of ‘treatment’.  The decision rather turned upon the refusal to dissect a patient’s condition into illness, symptoms, and consequences of symptoms.   Treatment was regarded broadly as applying to anything which addressed any aspects of the illness.

30. In MM v Mental Health Review Board, an unreported decision of the Supreme Court of Western Australia (CIV 2235 of 1998 judgment given 4 March 1999) Scott J was concerned with an appeal brought by an elderly woman with dementia, which made her incapable of living independently and exposed her to a substantial risk or injury or unintentional self-harm.  She had no insight and did not realise she could not care for herself.  She was detained in a mental hospital and appealed against the decision of the Board that she should remain in hospital.  A ground taken was that her detention was not treatment for the purposes of the Mental Health Act 1996 (WA).  The Act contained no definition of treatment.  Scott J considered whether treatment included ‘the provision of “supervision and a safe environment in which to live.”’  His Honour thought that treatment ‘should be interpreted widely in the context of this statute in order not to subvert the intent and purpose of the provision.’  Accordingly Scott J accepted as an appropriate definition that given by the Shorter Oxford Dictionary: ‘management in the application of remedies; medical or surgical application or service’.  Accordingly detention in the hospital where she could be safely housed, clothed and fed was treatment for the dementia.

31. Again the respondents seek to distinguish the case because of the absence of a definition of treatment in the West Australian Statute and the utilisation of the dictionary meaning, but I cannot see that the definition of treatment in the MH Act gives the word any different meaning to that which was thought applicable in the case.  In my opinion the ideas expressed by the judges were not formed by the particular legislation with which they were dealing but with the more general concept of what constitutes treatment of a mentally ill patient.  The respondents’ argument leads to the conclusion that keeping a disturbed man alive is not treatment for his condition though it is the cause of the risk to his life.  This is not only ‘atomistic’, it is gruesome.

32. The answers to the questions should be:

(1)(a)Yes.

(b)Yes.

(2)The Mental Health Act 2000.

(3)Yes.

It is not necessary to answer questions (4) and (5).