CFS (Review Guardianship)

[2019] TASGAB 7

CITATION:	CFS (Review Guardianship) [2019] TASGAB 7
HEARING DATE(S):	2 April 2019
DATE OF ORDERS:	2 April 2019
DATE OF STATEMENT OF REASONS:	18 April 2019
BOARD:	Ms L Wall, Member
APPLICATION	Review of Guardianship Order
CATCHWORDS:	Guardianship - continuing need for guardian for accommodation decisions – represented person opposed to detainment at current accommodation
LEGISLATION CITED:	Guardianship and Administration Act 1995 (Tas), ss 20(1), 51(1)
PUBLICATION RESTRICTION:	The decision has been anonymised for the purpose of publication

Reasons for decision

1. This application was made by the Public Guardian for the statutory review of a guardianship order made on 21 April 2016 in respect of CFS, a 71 year old man residing in a secure unit at the [the Facility]  in [the Hobart area]. The order under review was limited to a power to make decisions about where CFS should live permanently or temporarily. In the application the Public Guardian sought the continuation of the guardianship order because CFS’s disability and his capacity to make his own accommodation decisions had not changed. He had been a long term resident at [the Facility], against his wishes. A guardian was required to provide consent to his continued detention at the [the Facility] and to continue to explore suitable and preferable accommodation options for him.

2. The Board heard the application on the 2 April 2019. The hearing was attended by:

   ·CFS ( the represented person)

   ·Mr David Cocker (Legal Aid Commission - CFS’s solicitor)

   ·Ms Liz Love (Guardian and applicant)

   ·Dr PH (Old Age Psychiatrist at [the Facility]) joined the hearing by telephone.

3. The Board had available to it the following documents:

   ·Review application dated 20/2/19

   ·Medical report by Dr Alison Cleary (Geriatrician) 17/3/16

   ·Letter to Royal Hobart Hospital dated 3/3/15 from Dr Cleary comprising results of her cognitive assessment of CFS at that time.

   ·Medical report dated 28/2/19 by Dr PH

   ·Report from the Public Guardian dated 20/2/19

   Is CFS a person with a disability (section 20(1)(a) and 51(1)(a) of the Guardianship and Administration Act 1995)

4. In 2016, Dr Cleary diagnosed anxiety, depression, severe alcohol dependence (abstinent since entering care in 2014), cerebellar atrophy, right sided cerebrovascular accident and mixed alcohol and vascular dementia – along with co-morbid medical issues. At that stage CFS had required secure dementia specific accommodation for two years because of behaviours that could not be managed safely in an aged care setting.

5. In his report, Dr PH, who had CFS under his care at [the Facility], advised that there had been no improvement in his cognitive and emotional condition since Dr Cleary reported. Neither his alcohol related brain damage nor his co-morbid vascular dementia would improve and would continue to gradually worsen.

6. Although CFS strongly disputed the diagnoses there was no contradictory expert medical evidence. The Board therefore found on that evidence that CFS is a person with a disability.

   Is CFS incapable of making reasonable decisions by reason of his disability (section 20(1)(b) and 51(1)(b) of the Act)

7. In his report, Dr PH stated that due to his brain pathology CFS ‘lacks the social cognition to understand his own accommodation and care needs.’ His opinion was that CFS lacked the capacity for all accommodation decisions and would never regain those capacities. The Board found that CFS is, as a result of his disability, incapable of making reasonable decisions about his accommodation and care needs.

   Is CFS in need of a Guardian - section 20(1)(c) of the Act

8. CFS requires a guardian to consent to his accommodation at the [the Facility], a secure facility, as he does not have the capacity to consent to this and in fact strongly opposes it. His wish was to live in a caravan as he had done in the past.

9. He had been transferred to [the Facility] from [the Facility] after he had attempted to smother another resident with a pillow, failing to recognise the import of his action. No aged care facilities would thereafter take him because of the perceived risk he presented to others.

10.  It was agreed by all present that accommodation at the [the Facility] was not ideal for CFS but, because of his challenging and dangerous behaviours which could not be managed at [the Facility] or [the Facility] residential aged care facilities, no suitable alternative had yet been identified. It is clearly necessary that the appointment of a guardian continue to pursue the quest to secure more suitable alternative accommodation if possible. This had proven difficult to date and was likely to take some time, during which the need for a guardian would continue in order to consent to CFS’s ongoing detention at [the Facility]. The Board was thus satisfied that CFS was in need of a guardian with powers limited to decisions about accommodation. In the circumstances there was no alternative to the continuation of the Public Guardian in this role.

On 2 April 2019 the Board Ordered:

1.    That the Public Guardian continue as the represented person’s guardian.

2.    That the powers and duties of the guardian are limited to decisions concerning where the person is to live either permanently or temporarily.

3.    That the order remain in effect until 19 April 2019.