Young v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HAMILTON Decision No. 94 /95 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN PAMELA JUNE YOUNG of 19/ 94 / 00/1 Hamilton Appellant (Appeal No. DCA 156/94) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 10th day of August 1995 APPEARANCES A de Jonge Advocate for appellant T P Cleary for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant suffered a medical misadventure as a result of the psychiatric treatment she received at Tokanui Hospital from 1985 on. The appellant lodged a claim for cover with the respondent on 29 March 1993 in which she stated: "EC I wish to lodge a claim relating to errors in Medical Management of my postnatel (sic) depression at Tokanui Hospital including the use of ECT and multiple drugs." 2 When the claim was received, the respondent referred it to its Medical Misadventure Advisory Committee as it is required to do pursuant to s.5(9) of the Accident Rehabilitation and Compensation Insurance Act 1992 and regulation 4 of the Medical Misadventure Regulations 1992. The Committee obtained a report from Dr G Cliff, a Consultant Psychiatrist, who interviewed the appellant on 16 September 1993 and reported on 12 October 1993. In his report, he confirmed that he had had made available to him all the clinical records and reports from five hospitals in which the appellant had received treatment. Dr Cliff's opinion was: "I have condensed for the sake of clarity a very substantial amount of clinical information detailing this unfortunate woman's symptomatic complaints and psychiatric assessment/treatment, particularly over the period 1984 to 1987 during which time she was hospitalized on many occasions. I have found no evidence to support her contention that she was inappropriately treated with either medication or electric shock therapy (ECT), and indeed it would appear that there was considerable restraint in the use of such because of the manifest ineffectiveness thereof. What is equally important to note is the fact that the symptoms of which she currently complains and which she attributes to such treatment were in fact extant prior to most of such treatment and could in no way therefore be confidently attributable to that treatment. I have to say that in my opinion Miss Young's symptomatic difficulties are a manifestation of the distress which she suffers directly as a consequence of her personality dysfunction and in turn, her inadequacy at dealing with the stresses and responsibilities of her life. Sadly she has consistently denied this association or been simply unable to understand it, and hence her mistaken belief that had she not received psychiatric treatment of the type described then she would have been much better than she is now: there is nothing that I have encountered in her clinical notes to support that contention. It follows that I find no grounds on which to sustain her allegation of medical misadventure. I enclose my account which reflects the considerable amount of research time necessary to elucidate this complex medical history. Should you require any clarification of the foregoing, or more detailed information regarding any aspect of Miss Young's condition and its treatment, please advise me and I shall be glad to oblige." The Committee obtained a report from the appellant's General Practitioner, Dr Vaughan, dated 19 November 1993 who summarised his dealings with the appellant and concluded his report by saying: "To my knowledge, Miss Young has not had any further In-patient psychiatric treatment and she is presently receiving no form of medication. I would concur with Dr Graham Cliff's opinion that she clearly does have a major obsessive compulsive 3 disorder for which she has been extremely resistant to any professional therapeutic intervention. Without access to any other medical records from Tokanui Hospital, I cannot comment on the extent of adverse consequences arising from her treatment at Tokanui Hospital as claimed by the patient. I nevertheless believe that her future mental health prognosis is poor, and that she is likely to maintain accusatory claims about many forms of treatment that she has received in the past and confabulate a significant amount of information regarding previous treatment." The Committee also obtained a report from Wairarapa Hospital where the appellant had sought treatment in November 1986. A letter from the Senior Medical Officer to the appellant's General Practitioner dated 21 November 1986 stated: "Today Pam was quite demanding and manipulative and I could have spent 3 hours with Pam but ended up gaining no benefit for herself or for myself. I think one has to be realistic about Pam, I think she is going to be a chronic inadequate person and a long term psychiatric problem, and I do not think any psychiatric therapeutic measures will be of any use to her because she is quite insightly about her problems and investigating her would not be of benefit. If you do a brain scan and supplied tests and say there is nothing wrong she will want some more tests and there will be no end to testing." The Committee referred all the records to Dr J D van der Sluis, a Consultant Psychiatrist at Tokanui, with the request that he review the whole of the appellant's case history in order that the Committee could consider her claim that she had suffered "errors in medical treatment including the use of ECT and multiple drugs". Dr van der Sluis' conclusion was: "6.1 Diagnostic formulation In retrospect the diagnosis of "inadequate Personality Disorder" seems to be established sufficiently. In DSM III terms "Personality Disorder, mixed" with marked traits of the histrionic, passive aggressive and dependent subtypes of personality disorders. The diagnosis of inadequate personality disorder has been appreciated fairly consistently throughout her career as a patient. I am of the view that there has not been, probably not at any stage, a depressive illness, a major depression. Nor was there any psychotic feature observed. This is not to say that, where the diagnosis of post partum depression or psychosis was used as a working diagnosis, "errors" are being made. I am in the comfortable position of evaluating her case whilst several treatment options are being tried on her - in her best interest. In fact, the conclusion that she does not respond to medical treatment is also an assessment of her condition. Claimant adopted firmly the sickness-model, the role of the patient. With a strong projection on those who should treat her for her illness. Unfortunately, this mechanismi has been positively reinforced by the huge medical attention paid to her with a variety of diagnoses and medical treatments. For her, this must be quite confusing. She attributes her mental state, her functioning in general, to the onset of motherhood and all the fears that she has associated with this. She willingly collected symptoms of problems to add to those she had already. Both projection and manipulation being reinforced. Using the working diagnosis of depression and treating her with antidepressant medication, is in my view entirely acceptable, the more so where any possible psychotherapeutic modality has been appreciated consistently if not in particular. I have not found any evidence supporting claimants view of being treated inappropriately during her admission(s) to Tokanui Hospital. Apart from the fact that she was not treated with "multiple or numerous medications", she was even treated with reasonably modest doses of medications and adequately considered combinations thereof. Nor did I find any indication for any adverse consequences for claimant as the result of her ECT course of six treatments when she was in the hospital. Not "numerous" treatments. And any possible side effects from ECT may occur during the course and for some time thereafter but usually disappear. Not the other way, as claimant seems to suggest. Regarding the other part of her medical treatment, the psychotropic medication, the same applies. No adverse consequences, let alone side effects which become manifest several years later. I am satisfied that no "medical errors" are being made and I am satisfied that claimant's treatment in particular and her stay in Tokanui Hospital in general, was not to the detriment of her mental condition, whatsoever. There is no substance in her claim of functioning less appropriately since her admission and treatment in Tokanui Hospital, if not to the contrary. Hence, since there was no "medical error", and, thus no "injury", her claim of medical misadventure can not stand. Indeed, her dysfunctions originated and manifested in childhood already. Her complaints are of the same nature as those she had prior to her admissions to Tokanui Hospital, were pre-existent. The opposite may be true, though. I understand that claimant now for several years, is able to maintain a certain equilibrium in the community, that there has not been admissions to psychiatric inpatients. I am inclined to consider this as quite significant. UI Due to her projection of her insufficiency she may well still blame the Doctors for "not curing her". In essence, there is little difference between the approaches of all the doctors she has been attending. The only striking difference being the fact that electro convulsive therapy was applied in Tokanui. One course of six treatments only, because it was ineffective. But here as well, without adverse consequences for the patient. The notion of her having been able to maintain herself in the community could be a positive affirmation for her if emphasised. Her not being able to maintain herself in a job for any length of time, is the result of her deficiencies, and not the result of any treatment she had. 6.2 Claimant was not "committed" to Tokanui Hospital. She has been admitted as a voluntary patient of which she is well aware. I consider her claim of having been a committed patient as manipulation, consistent with her "post partum depression" she claimed she had been suffering. Consistent with several other matters she would raise in an equally naive fashion. Her claim of having signed documents whilst in Tokanui and suggesting that she was not able to comprehend its merits can not possibly stand. She did not sign any document which "took away her rights". Both the consent for ECT and the agreement with DSW were of such nature that she still had the right to revoke the same. I have not been able to find any inaccuracy regarding consent to treatment other than the absence of the Treatment Consent Form which usually is signed on admission (on voluntary basis). Nonetheless, I am satisfied that claimant was admitted to Tokanui on the basis of consent and that she consented to the treatment applied. On the occasions that she did not, i.e. when she wanted to leave the hospital she was not hampered in whatever way to do so. The fact that claimant lost custody of her children is not in any way the result of her having been a patient in Tokanui Hospital or the treatment she has undergone. Her not having custody is the result of her being insufficiently equipped for having the responsibility for them as is well established. This being the consequences of her personality disorder. The custody was not settled during her stay in Tokanui anyway. In conclusion, I am satisfied that there is no substance for the claim of "medical errors", let alone "medical mishap", whilst there is not even a "personal injury", and hence there is no substance to the claim of "medical misadventure" in this case." The Committee concluded that the appellant's condition was not due to a failure by a registered health professional to observe a standard of care and skill that was reasonable in the circumstances and consequently that there had been no medical error. It also decided that medical mishap was not in issue in this case. The respondent accepted that advice and notified the appellant on 12 April 1994 that her claim was declined. The appellant applied for a review of that decision and instructed Mrs de Jonge to act for her. Mrs de Jonge submitted that the appellant's medical misadventure arose from the ECT and the toxic effects of multiple benzodiazepines. She submitted that the appellant now suffered numerous problems arising from ECT and dependency on benzodiazepines. She submitted that the medical profession should have been aware of the dangers of prescribing ECT and benzodiazepine, and that a prudent doctor should have known of the dependency and adverse effects of the drug as early as 1974. In the case of the appellant, the drugs were not prescribed for her until 1984. Mrs de Jonge submitted a copy of an internal memo issued by the respondent on 25 August 1993 which states: "Thurs 26 Aug 1993 The New Ethicals Catalogue of Drugs was circulated to every medical practitioner registered to practice in NZ including all specialists and psychiatrists - at intervals of 1 year since 1970. In 1974 every medical practitioner was aware of the side effects possible from any prescription drug, as well as the specific action of each drug or combination of drugs used at once. The Benzodiazepines had been widely prescribed for anxiety (???) and sedation from 1964 in NZ. The side effects enumerated in the adverse reactives and safety factors of the Ethical catalogue were well known and acted upon by medical practitioners consulted for advice by their regular and especially drug dependent patients from 1970 The Ethicals Catalogue was and remains a standard reference for all registered medical practitioners writing prescriptions and dispensing drugs. This is updated at least once every year." She also submitted a report from Dr Henry Bennett, a Consultant Psychiatrist, dated 16 April 1992 along to the appellant's then solicitor. Dr Bennett concluded his report by saying: "In the interim I have seen Ms Young on no less than 17 occasions, each for at least half an hour and many much longer. During the period Ms Young has been on no medication. I understand she had not been on any for a considerable period before I first saw her. During the last nine months access to her children has been denied Ms Young entirely. When first seen Ms Young's main concern was ultimately to regain custody of her children. At the time I first saw her it was to gain more frequent access to the children. Over these last few months it has been to regain access to the children as an initial step to getting custody ultimately. 7 My main role in continuing to see Ms Young as frequently as I have, has been in the main a supportive one. I have no doubt at all that her consistent and strong desire to have her children under her care has sprung from strong maternal instincts so to do (sic). That these instincts have been consistently and persistently frustrated have for her been the source of very considerable stress. In view of her past psychiatric history I have taken special care to be vigilant with regard to the possibility of the development of a frank psychiatric disorder as the result of this maintained stress. Though Ms Young tends towards repetitive verbosity, in fact at no time has there been any indication of the presence of delusions or of hallucinations or of her showing any other symptoms of the presence of a major mental disorder. Nor have I perceived the presence of a minor mental disorder referred to as a psycho-neurosis. From my observations of Ms Young I am of the opinion that there is nothing in Ms Young's present psychological makeup that would prevent her from carrying out ordinarily maternal duties insofar as they concern the nurturing and the rearing of her own offspring." The Review Officer noted that the appellant also raised a further issue being the lack of informed consent as a further ground for the allegation that she had suffered a medical misadventure. The Review Officer concluded that no new evidence had been supplied other than that which had been available to the Medical Misadventure Advisory Committee and declined the application for review. Mrs de Jonge made submissions to me similar to those which were made before the Review Officer and provided me with literature in relation to the problems of dependency on benzodiazepines. She also submitted that there had been a failure to obtain the appellant's informed consent to the treatment she undertook at Tokanui Hospital. Mr Cleary submitted that there is a copy of the appellant's consent to the ECT treatment on the file and it is dated 28 August 1985. That document has been signed by the appellant and confirms that she had had explained to her the nature of the proposed treatment and she consented to undertaking it. He submitted that on the basis of the medical reports, particularly those of Dr Cliff and Dr van der Sluis, the decision of the Committee was correct. At the hearing, I suggested to Mrs de Jonge that in order to support her appeal that the appellant had been unnecessarily treated with drugs and benzodiazepines, it was necessary to show that at the time the drugs were administered the practitioners who administered them did so in a negligent or careless manner without regard to the consequences. While she has produced documentation as to the possible side effects of the administration of those drugs, they are really only by way of warning, but did not go so far as to say that the use 8 of such drugs at the time they were given to this appellant was prohibited. While medical practitioners had been warned of the possible side effects, the drugs concerned are still recognised as useful tools in the treatment for problems similar to those suffered by the appellant, but their use must be strictly monitored. On the basis of the information before me, I do not consider that it can be said that the practitioners who administered the drugs did so in a manner which was unprofessional or negligent and that they did exercise an appropriate standard of care and skill at the time. I have considered the letter from Dr Bennett, but I do not think that this, in any way, addresses the issue of medical misadventure and does not assist the appellant in her case. I am placed in the same position as the Corporation and the Review Officer that I must be guided by the reports and the finding of the Medical Misadventure Review Committee. The appeal is dismissed. DATED at WELLINGTON this 2 2nd day of August 1995 preundaula A W Middleton District Court Judge dc156-94.doc(mh)