AHT v NSW Trustee and Guardian

[2012] NSWADT 34

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	AHT v NSW Trustee and Guardian [2012] NSWADT 34
Hearing dates:	21 February 2012
Decision date:	02 March 2012
Jurisdiction:	General Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	The decision of the Public Guardian to permanently place AHT's wife in a nursing home is affirmed.
Catchwords:	Merits review- decision of Public Guardian to place woman in nursing home - whether correct and preferable decision - ability of husband to care for wife at home
Legislation Cited:	Administrative Decisions Tribunal Act 1997
Category:	Principal judgment
Parties:	AHT (applicant) NSW Trustee and Guardian (respondent)
Representation:	AHT (Applicant - in person) Ms Stormont (Respondent)
File Number(s):	113349
Publication restriction:	s126 of the Administrative Decisions Tribunal Act 1997 applies

REasons for decision

1. Mrs Brown is a 74 year old woman who has been diagnosed with advanced dementia. On 11 November 2011 the Guardianship Tribunal made a guardianship order in relation to Mrs Brown and appointed the Public Guardian to make substitute decisions in relation to certain matters including where she should live. On 8 December 2011 the Public Guardian decided to place Mrs Brown permanently in a nursing home. She was moved to a nursing home from hospital the following day, 9 December 2011. On the same day her husband, AHT, applied to this Tribunal for a review of the Public Guardian's decision. On 19 December 2011, this Tribunal refused an application to stay the decision and Mrs Brown has remained living in the nursing home.

1. The issue in these proceedings is whether the Public Guardian's decision to place Mrs Brown permanently in a nursing home is the correct and preferable decision; Administrative Decisions Tribunal Act 1997, s 63.

1. Prior to her admission to hospital in September 2011, Mrs Brown had been living with her husband of 53 years. AHT firmly believes that his wife has deteriorated significantly since being in the nursing home and that he is capable of looking after her at home. He has been told that his wife has just months to live and says that she should be able to spend her last days at home with him. AHT provided some photographs of his wife saying that they demonstrated the extent to which she had declined since being in the nursing home and proved that she had not been receiving physiotherapy. I have not been able to draw those inferences on the basis of the photos.

1. Ms Stormont, representing the Public Guardian, provided material which demonstrated that Mrs Brown's needs are very high because she is unable to walk, is incontinent, does not speak much and requires assistance to shower and eat. She says that attempts to discharge Mrs Brown from hospital to home, with services being provided, were unsuccessful because AHT has given various reasons why she should not be discharged at the time. Furthermore, she says that AHT lacks insight into the nature of his wife's illness and the level of care she requires. I accept those submissions which are based on documentary evidence provided by the Public Guardian.

1. In a report dated 19 September 2011 Dr Kakkat reported that Mrs Brown had been admitted to hospital

". . . for rehabilitation after de-conditioning due to delirium secondary to a urinary tract infection and constipation. Her background medical history includes advanced dementia, recurrent falls, CVA about 6 months ago, hypertension and hypothyroidism. Currently she needs significant assistance for her daily activities."

1. Mr Pirotta, a Clinical Nurse Consultant, provided a report dated 23 September 2011 for the Guardianship Tribunal proceedings. In it he said:

I have visited Mrs Brown at home three times often after reports from police that AHT has paranoid delusions re radiation coming out from neighbours and these rays are harming his wife. Mrs Brown is not able to communicate and sometimes she mumbled in German. She needs a lot of prompting with her hygiene and toileting care needs. She mobilised holding on to the walls and furniture. AHT reported that her function is declining especially after her last visit in hospital in January 2011. He still attributes her functional decline due to the "electronic radiations" that the hospital and neighbours are emitting. He denies she could have a urinary tract infection (UTI), high blood sugar levels or dementia. He refused to accept any help or services as he is adamant that he can do it without any help of anyone. He still goes shopping to Penrith three times a week with the train and "drags" his wife with him.

AHT denied dragging his wife anywhere, but the fact that the word is in quotation marks suggests that they are AHT's words. Nevertheless I am not satisfied that AHT has physically dragged his wife to the shops. He impressed me as a caring person who would not deliberately do anything to harm his wife.

1. Mr Pirotta concluded the report by expressing the view that Mrs Brown is extremely vulnerable in the community and at home, especially due to the fact that AHT lacks insight about her deteriorating condition, frailty, risks of falls and refusing community services."

1. In a report from an occupational therapist from Nepean Hospital, a detailed note is provided of attempts to discharge Mrs Brown from hospital. In part the report states that:

During Mrs Brown's admission there were many attempts to plan her discharge home as per AHT's wishes, however each time a discharge date was decided upon with Mr Brown's input at a family conference, AHT will decline taking Mrs Brown home when the day came due to a new reason.

1. The report then sets out four separate reasons that AHT said that it was not appropriate to take his wife home. I questioned AHT about his willingness to have his wife discharged into his care and he repeated some of the explanations contained in the report. He said, however, that he is now prepared to accept services from Anglicare.

1. A registered nurse at Nepean Blue Mountains Mental Health Access Team expressed the view in October 2011 that AHT appeared to be suffering from a chronic paranoid delusional disorder. He added that this disorder would interfere with his capacity to continue to care for his wife.

1. There are numerous examples of AHT expressing paranoid ideas throughout the material. During the hearing he said that someone had used an electronic gadget, like a stun gun, to injure his wife. He said that he has also been hit by the gadget a few times and that he does not know what is going on. He added that manipulations with electronics have penetrated his wife's nerves and that they are highly inflamed. In his view, that is why she cannot walk.

AHT expressed other obviously paranoid thoughts saying that his wife's hearing had been interfered with by a loud noise on the phone, similar to that made by a facsimile machine but many times louder. He said that he had also experienced this noise and had become temporarily deaf but had removed the handset from his ear before doing any permanent damage. AHT also said that his phone must have been tapped and he must be under surveillance because how else would a nurse know that his brother had slipped on a staircase and broken his pelvis in Germany. He said that "they" must have been listening in to a conversation he had with his family in Germany. Mr Brown held the suspicion on the basis of a file note on the Public Guardian's file which said that:

Phone call from [Clinical Nurse Specialist]. He apologised and said that the information he gave yesterday about Mrs Brown breaking her hip was incorrect; he was thinking of another client of his.

1. This note is rational and self explanatory. There is nothing to link it with an injury to AHT's brother.

1. I am satisfied that AHT suffers from a delusional disorder. I put to him that he had no insight into the real causes of his wife's illness or the nature and extent of care which she requires. Unsurprisingly, AHT denied that he suffered from a delusional disorder or that he would be unable to care for his wife at home.

1. I am not satisfied, on the basis of his behaviour in the past, that AHT is genuinely prepared to accept services for his wife in his home. AHT does not appreciate the nature and extent of his wife's illness, that she will not improve even if she returns home to his care and that she requires a very high level of support.

1. I have no doubt that AHT is devoted to his wife and thinks that he has her best interests at heart. Although it is a superficially attractive idea that Mrs Brown should go home and live out her last days in the company of her husband, I am not satisfied that she would receive the physical care she needs in that environment.

1. Unfortunately AHT's lack of insight and his refusal to accept services in the past means that it would not be in Mrs Brown's best interests for her to go home. It follows that the Public Guardian's decision to place Mrs Brown permanently in a nursing home is the correct and preferable decision.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

Decision last updated: 16 April 2012