| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : DB [2013] WASAT 41 MEMBER : MS F CHILD (MEMBER) DR R CLARNETTE (SENIOR SESSIONAL MEMBER)
DR H HANKEY (SENIOR SESSIONAL MEMBER)
HEARD : 19 SEPTEMBER 2012 AND 27 FEBRUARY 2013 DELIVERED : 21 MARCH 2013 FILE NO/S : GAA 2695 of 2012 MATTER : DB Catchwords: Guardianship - Application for appointment of a guardian Proposed represented person with long-standing diagnosis of multiple sclerosis and associated cognitive impairment Refusal of services Risk to accommodation Need for guardian Wishes of proposed represented person Legislation: Guardianship and Administration Act 1990 (WA), s 4, s 43(1)(b), s 43(1)(c), s 51(2)(b), s 51(2)(e), s 51(2)(f), s 110ZH
Retirement Villages Act 1992 (WA)
State Administrative Tribunal Act 2004 (WA), s 35
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Result: Limited guardianship order made
Summary of Tribunal's decision: The Tribunal appointed the Public Advocate as limited guardian to consent to services, including ambulance services, for a 64yearold man with a 30year history of multiple sclerosis. The Tribunal accepted the consistent medical evidence that the man had impaired cognition as a result of the progress of his illness and that he lacked capacity to make personal decisions. The Tribunal determined that the man was a person for whom a guardianship order could be made.
The Tribunal accepted the evidence that the man was at risk of injury from falls, had health problems associated with poorly managed incontinence, and had demonstrated that he lacked capacity to make reasonable judgments about his person in his refusal of recommended treatment and mobility aids, continence management aids and medical assessment following falls. The man denied that he had regular falls and incontinence problems, and denied that his accommodation might be put at risk because of these issues. The Tribunal preferred the evidence of other parties, and found that the man had regular falls and experienced regular urinary incontinence. The Tribunal accepted that the man's accommodation in a retirement complex was at risk because his poorly managed incontinence resulted in the smell of urine at and around his home. The Tribunal determined that the man needed a guardian, as there was a need for oversight and care in the interests of his health and safety, and to accept services on his behalf, including medical assessment following falls.
Although the appointment of a guardian was against the wishes of the man, the Tribunalwas satisfied that his needs could not be met less restrictively because of his resistance to assistance and lack of insight into his disabilities and dependence. The Tribunal determined that the appointment of a guardian was in his best interests, as a guardian would provide advocacy and consent to services which, if accepted, would be more likely to enable the man to remain living in his own home, as he wished. The Tribunal did not make the wider orders sought as it determined that the limited order with the function to consent to services addressed the immediate needs of the man. The Public Advocate was appointed as no one else was proposed for appointment.
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Category: B
Representation: Counsel:
Solicitors:
Case(s) referred to in decision(s):
Nil
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REASONS FOR DECISION OF THE TRIBUNAL:
Application 1 DB, (represented person) is a 64yearold man with a 30year diagnosis of multiple sclerosis. An application from a hospital social worker for the appointment of a guardian to be appointed for the represented person was filed with the Tribunal on 27 July 2012. The application asserts that the proposed represented person is unable to manage aspects of his personal care, including management of incontinence, which has resulted in significant problems at the independent living unit where he has lived for the past eight years. It is said that complaints about the smell have been made by neighbours, and the management of the facility intend to commence eviction action against him. 2 The applicant says the represented person has refused services, including showering assistance, provision of continence aids and medications as prescribed, and has refused to wear a pendant alarm or to plan for a move to residential care. The applicant says that some of the represented person's frequent falls go unreported, and although he is receiving the highest level of support service through an Extended Aged Care at Home (EACH) package, it is insufficient to meet his care needs and as a result he is at risk of injury and of losing his accommodation. The applicant reports that the represented person has refused equipment to assist with mobility and transfers, and that he has refused medical assessment after falls, when reportedly unwell and when carers recommend medical attention. 3 The applicant submits that the proposed represented person has little insight into the problems he experiences and downplays the extent of his disabilities. 4 The matter first came on for hearing on 19 September 2012 and was adjourned for further investigation by the Public Advocate. Orders were made for further specialist evidence to be gathered regarding the capacity of the represented person to make personal decisions. A summons was issued for the attendance of the coordinator of the EACH package service to provide evidence regarding the day to day care and services provided to the represented person. There were delays in obtaining a further specialist assessment of the represented person, and the matter was relisted for hearing on 27 February 2013. (Page 5)
5 No application is made for the appointment of an administrator for the represented person.
Legislation 6 Pursuant to s 43(1)(b) of the Guardianship and Administration Act 1990 (WA) (GA Act), a guardian may be appointed for a person if the Tribunal is satisfied that the person is unable to look after his own health and safety, unable to make reasonable judgments about his person or, is in need of oversight and care in the interests of his own health and safety and, pursuant to s 43(1)(c) of the Act, is in need of a guardian. 7 These provisions are subject to principles set out in s 4 of the GA Act which provide the following: The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made. Every person shall be presumed to be capable of (a) looking after his own health and safety; (b) making reasonable judgments in respect of matters relating to his person; (c) managing his own affairs; and (d) making reasonable judgments in respect of matters relating to his estate, until the contrary is proved to the satisfaction of the State Administrative Tribunal. A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action. A plenary guardian shall not be appointed under section 43(1) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made. An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action. (Page 6)
In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.
Issues to be decided 1) Is the proposed represented person a person for whom a guardianship order may be made? 2) If so, is he in need of a guardian or are there less restrictive alternatives to the appointment of a guardian to meet his needs? 3) If a guardian is to be appointed, who should be appointed in that role and what functions should be included in any order made?
Is the proposed represented person a person for whom orders may be made? 8 Although the proposed represented person accepts he has a diagnosis of multiple sclerosis, he denies that he has any impairment of his thinking, denies he has falls or has any problems with incontinence. 9 The represented person says he has lived in his independent unit in a retirement complex for nine years, and he has had two or three falls in that time. He says that the falls occurred when he was careless or had tripped over. He says he wants to be left alone to live his life normally in his unit. He says that he has 14 people (carers) coming into his unit to cook meals and he appreciates the care provided under the EACH package service. He does not agree that he needs a guardian and does not want one. 10 The medical evidence before the Tribunal includes the following. 11 Dr SM, a geriatrician, in a letter to the represented person's general practitioner, Dr CB, dated 15 May 2012, refers to a discussion with the represented person regarding recurrent falls and incontinence that Dr SM believes puts the represented person's skin integrity at risk, and notes that these are 'good reasons for going into care'. The letter states that the represented person: … has very advanced Multiple Sclerosis with significant disability and there are safety concerns for him remaining at home. He has been approved for high level care and I have encouraged him to go ahead with listing his name at the [aged care facility] on the basis that he inevitably (Page 7)
will require high level care. Overall I thought that his insight into his problems was limited and he downplayed the extent of his disabilities and overestimates his abilities (eg. he thinks he is still capable of going on a holiday to Canada and that flying on an aeroplane and travelling on a train would be no problem despite his clear difficulty with transferring and toileting). … The report goes on to say: … if he continues to have falls, incontinence and his EACH package providers struggle to care for him then I would recommend a guardianship hearing be pursued. 12 A report to the Tribunal from Dr SM, dated 9 October 2012, regarding the represented person refers to his diagnosis of multiple sclerosis as a progressive condition and that the represented person will continue to decline both cognitively and physically. The report notes: He's already precarious with regards to his functional ability and his failure to manage his own care and safety adequately at home. 13 Dr SM considers the represented person incapable in the sphere of decision-making about his personal healthcare and his living situation. He notes the represented person 'consistently makes poor choices'. 14 Dr SM goes onto say: I think that he has significantly impaired insight into his functional abilities and risk for safety from poorly managed continence, mobility and refusal of appropriate aids, equipment and strategies. He therefore does not appear to comprehend the context of his problem. He does not understand the consequences of his poor choice. He denies, ignores or forgets the problems or the extent of help needed. For example, needing elderly neighbours to pick him up after a fall or change his continence pad. Despite being articulate and on face value a good advocate himself, his impaired insight and judgment put him at risk. He will benefit from having oversight of his personal health care. A guardian appointment seems appropriate. 15 Dr CB, the represented person's general practitioner, in a report dated 25 July 2012, states that she has known the represented person for five years and that he has multiple sclerosis with a severe physical disability 'but is in denial regarding his disability and appears to have no insight, increasingly evidenced as his physical limitations have worsened'. Dr CB reports that the represented person's MiniMental State Examination (MMSE) score is 'essentially normal'. She states, 'his impairment [is] particularly related to his refusal to recognise his (Page 8)
disabilities'. She reports he had spoken to her about travelling overseas on his own and that he did not feel it was necessary to advise the airline of his disabilities. 16 Dr CB states that she considers the represented person is incapable of decisionmaking about his personal healthcare and his living situation 'because he believes the current arrangements are suitable'. 17 Following the adjournment of the hearing in 2012, a report of AC, a clinical neuropsychologist, dated 12 February 2013, was produced to the Tribunal. AC reports that she conducted a neuropsychological assessment of the represented person on 8 and 21 January 2013. In her report, the following summary is given: The represented person experienced significant cognitive difficulties, reduced working memory, several executive difficulties, that is, problems with mental flexibility, inhibition, nonverbal reasoning, problem solving. 18 The report further notes: … evidence of fluctuating attention, disinhibition, poor selfmonitoring and difficulty with comprehending more lengthy and complex information. 19 The summary notes the 'pattern of results is suggestive of a decline in cognition most likely due to his advanced MS'. The report notes that the represented person 'clearly lacked insight into his cognitive and functional difficulties. He is reported to have described his multiple sclerosis as 'mild' and denied he was having frequent falls. A fall is reported to have occurred on 6 February 2013. AC reports that the represented person believes he is not at any risk associated with falling and that there are no concerns raised about his hygiene. Overall, the represented person is reported to have: … significant difficulties understanding, retaining and integrating information into his reasoning. This severely limited his ability to weigh up and consider alternatives and potential consequences. The report recommends that a plenary guardian be appointed. 20 The applicant says that the report of the neuropsychologist highlights the difficulties that the represented person suffers on a daytoday basis and his lack of insight into his falls risk. The applicant says that if the represented person has a fall, he may have a serious injury and might be left for many hours without assistance. The application refers to the refusal by the represented person to use a pendant alarm. This is also noted in a document produced at the first hearing from the retirement (Page 9)
complex manager. The applicant says that the refusal of the represented person to have an ambulance called following a fall means that there is no scope for medical assessment or examination. The applicant says that the represented person's refusal to call an ambulance is because of his fear of being admitted to hospital. The applicant agrees that no fractures or serious injuries from the falls have been reported to date, but says the concern remains that the represented person's fear of admission to hospital means he will continue to refuse to have an ambulance called, which prevents any preliminary assessment of potential injuries after a fall. He submits there is a need for a guardian to ensure that an ambulance can be called. 21 The former spouse of the represented person, who maintains regular weekly contact with him, asserts that there is 'plenty of evidence' that the represented person has suffered falls causing injuries. She says that on one occasion, the represented person fell and knocked over a brass statue which had then fallen on him. He suffered a head wound as a result. She has in the past cleaned up blood stains on his carpets following injuries. She reports that there have been long-term problems of falls by the represented person and refusal of medical assessment following falls. She says that the represented person restricts his fluid intake to avoid incontinence and he has had one episode of gout. She supports the appointment of a guardian with the power to oversee the represented person's medical care, to ensure he has care following falls, and to investigate options for long-term care or a private carer. She says she believes the represented person can afford a private carer. 22 She supports the appointment of the Public Advocate as guardian as she says an independent appointment would be at arm's length and more objective about the represented person's needs. 23 The represented person's son also supports the application and the appointment of the Public Advocate. The son says that his father has lost capacity to say what is best for him. He says his father often hits his head and injures himself. The son does not consider his father should continue living at the independent unit as, in his opinion, he needs to live somewhere where he could be helped up (from falling) and assisted. He says his father is stubborn and resistant to change, but says he does not 'think he knows when to concede that he needs assistance'. 24 The friend of the represented person, who attended the earlier hearing, supports the wish of the represented person not to have a guardian appointed, but says that he is in a dilemma because he has found (Page 10)
the represented person on the floor on more than one occasion. He says he recognises the represented person's passionate wish to retain his independence and to control everything and not to be told what to do, but from a health perspective, he believes it would not be too long before the represented person 'might crack his head open'. He says he feels the represented person needs more care. He says that although he and the represented person's son are appointed attorneys under an enduring power of attorney (EPA), the represented person will not allow him to assist him with the management of his finances. 25 In a report dated 11 September 2012, VS, the EACH service case coordinator, described the represented person as a person who 'never appears confused, always follows instructions, always engages in a sensible and appropriate conversation'. VS goes on to say that 'assistance is required only with financial matters at this stage'. 26 Following the first hearing, the integrated progress notes (progress notes) maintained by the EACH package service provider of the care of the represented person were obtained by the Tribunal pursuant to an order made under s 35 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The progress notes refer to the represented person's falls, and problems with incontinence, going back to at least June 2011, and to the represented person's refusal of continence aids. The progress notes also record refusal by the represented person to shower, and the smell of urine in his unit. 27 In the hearing, the EACH service case coordinator reports that the represented person is receiving the maximum care package available under that scheme of about 13 hours of personal care each week. This consists of 17 visits per week by a carer. She reports that the represented person generally has a good rapport with his carers. She says that the carers who attend the represented person believe he has capacity, but are concerned when the represented person refuses to see a doctor when they consider he needs to, and feel vulnerable in respect of the care they provide to him. 28 The EACH service case coordinator says additional hours of care for the represented person could be purchased from private agencies at the potential cost of $40 per hour. 29 When asked in the hearing, the EACH service case coordinator identified potential risks to the represented person as 'falls and slips, infections or pressure areas and nutritional deficits'. (Page 11)
30 The EACH service case coordinator said that from March to September 2012, five falls had been recorded but no injuries were reported, and from September 2012 to the present, eight falls were recorded, three of which resulted in injuries of a minor nature: 'two small head wounds and one black eye' (T:67; 27.02.13). An ambulance was called in April 2012 because of a presumed chest infection but the represented person refused to go to hospital. 31 The EACH service case coordinator reports that a physiotherapist assessed the represented person and made 12 recommendations in November 2012 to address the represented person's risk of falling. The recommendations, which she described as 'simple things' which could reduce his risk, included a walking frame, a special bed, a raised toilet seat, and a dining room chair with arms and a higher seat, but that the represented person had refused all of these (T:69; 27.02.13). She reports that he uses an office style chair on castors which swivels around as he finds this easier to use. 32 The EACH service case coordinator says that the represented person is incontinent of urine, which is reported at least once per week but that this issue could not be addressed because of the refusal of the represented person. She agrees that incontinence of the represented person is more of an issue for the retirement complex in which the represented person lives. She reports that when she had been at the represented person's unit, approximately six weeks before the hearing, the smell of urine had not been as strong as it had been in the past. She agrees that the represented person refuses to open his windows and that there had been complaints in the past from carers about the smell in the unit, but this had not occurred for a while. In respect of personal hygiene, she says that only one carer is welcomed by the represented person to shower him, and if that carer is not available, the represented person will say that he has showered himself or that he does not want to shower. The carer had been away for two weeks over Christmas. She says that there have been no reports of pressure areas as assessed by the carer who assists the represented person with showering. All carers had reported that there are no issues with the diet of the represented person. 33 In respect of the daytoday care of the represented person by the EACH service, the case coordinator says 'they managed okay, but because he is resistant and noncompliant it does make it difficult'. She says there is no risk that the service will be withdrawn, and that the represented person is happy for the service to be provided (T:78; 27.02.13). (Page 12)
34 The represented person denies that he has falls but agrees that he has slipped down off the couch on occasion. He does not consider these incidents are 'falls'. He does agree that he had been sitting on the floor in the toilet on another occasion and had hit his head on the door when trying to get up. The represented person says that he did not see the need to go in the ambulance at the times that had been suggested to him. 35 The represented person agrees that the physiotherapist recommended further services and aids and that he was unwilling to trial any of them. He says that the recommended chair was 'more a hazard than it is a help' (T:70; 27.02.13). 36 In respect of skin integrity and pressure areas, the represented person's former spouse says that he had recently experienced pain in his buttock due to a skin lesion and had called his general practitioner to visit him at home. The represented person confirms Dr CB visited his unit and gave him a prescription for antibiotics, which he had asked his carer to fill that day as he did not want to wait until his former spouse's regular visit some days later. He says that he has taken the antibiotics and has only three left. 37 The represented person confirms he does not consider he has incontinence or that this is a problem; he says that he has had his carpets cleaned and that he has purchased an odour detector. He agrees that continence pads have been provided by the EACH package service but that the box of incontinence pads remains at his unit unused and can be collected. Following the evidence of the EACH service case coordinator that a carer assisted him to some extent with showering, the represented person said that, in the future, he might refuse the assistance of the carer he had previously agreed could shower him (T:70; 27.02.13). 38 The Public Advocate, in submissions made in the first hearing, questioned whether the represented person was a person for whom a guardianship order could be made. However, at the final hearing, following the report of the neuropsychological assessment, the Public Advocate now submits that the represented person is a person for whom a guardianship order may be made as he lacks capacity to make decisions about his person due to his reduced cognitive function. 39 The Public Advocate submits that the represented person needs a guardian because his accommodation is at risk and a guardian could provide advocacy for the represented person. (Page 13)
40 The Public Advocate's representative reports that the manager of the retirement complex has received complaints regarding the odour coming from the represented person's unit and has indicated that eviction action might be taken but that the manager has been 'holding off' until the guardianship application had been determined. The Public Advocate's representative reports that, as part of the represented person's contract with the retirement complex, if his care needs are assessed as high care, he is not eligible to remain in the independent living unit. It is understood from the applicant that the represented person has been assessed as requiring 'high care' by the Aged Care Assessment Team of which the applicant is part. The Public Advocate's representative notes that the manager of the retirement complex attended with a solicitor at the first hearing before the Tribunal, which indicates the seriousness of the situation. The Public Advocate's representative reports that the manager of the retirement complex said that the process to evict the represented person from his unit through procedures under the Retirement Villages Act 1992 (WA) (RV Act) is too slow and cumbersome and might not achieve the desired result. The Public Advocate's representative agrees that the manager's perception might be that the appointment of a guardian would speed up the process of eviction of the represented person (T:93; 27.02.13). 41 The Public Advocate's representative submits that a guardian is needed, with functions to decide where the represented person should live, to both deal with the immediate issue of the risk to his current accommodation and to make decisions about accommodation in the future, and to determine the services to which the represented person should have access, because he has refused services and needs advocacy. She submits the function to make medical treatment decisions should be included in the order because of the professional evidence that the represented person is not capable of making healthcare decisions and the reported breakdown in medical treatment for the represented person. The Public Advocate's representative submits that it may be necessary to override the represented person's refusal to be taken to hospital in an ambulance. She asserts that the represented person is dismissive and 'scathing' about medical services (referring to medical practitioners, physiotherapists and occupational therapists in derogatory terms), the implication being that the represented person is likely to continue to refuse appropriate medical treatment despite the recent example of him seeking treatment for a presumed infection of his skin. (Page 14)
Is the represented person a person for whom a guardianship order may be made? 42 Based on the material before the Tribunal, including the medical evidence of Dr SM, Dr CB and the assessment of the neuropsychologist, Ms AC, the Tribunal finds that the represented person is a person for whom a guardian may be appointed. We accept the evidence of both doctors and the neuropsychologist that the represented person has cognitive impairments associated with his advanced multiple sclerosis. We accept the evidence that his lack of insight into his disabilities is as a result of those impairments. No other contrary professional evidence was put to the Tribunal. 43 The Tribunal prefers the consistent evidence of all other parties to that of the represented person to find that he has suffered recurrent falls. Although we find that to date no serious injuries have been reported, we accept the applicant's contention that the represented person remains at risk of injury due to falls and his physical disabilities. 44 The Tribunal also accepts the evidence of the EACH service case coordinator, the former spouse, and the represented person's friend, that the represented person experiences regular urinary incontinence, and because of his unwillingness or inability to accept this, his incontinence is not managed effectively. He maintained his refusal to use continence aids at the hearing. 45 Due to his reported lack of insight into his disabilities and his refusal to acknowledge he is at risk of falls, we find that he is not able to look after his own health and safety. As he does not appreciate the consequences of his disabilities and his dependence on others for his care, we find he is in need of oversight and care in the interests of his own health and safety. 46 We find that the represented person is not able to make reasonable judgments about his person because of his refusal of services, including medical or paramedical assessment following falls, his refusal to wear a pendant alarm so that help could be summoned when he falls, and his refusal to trial any of the aids proposed by Dr SM or the physiotherapist, recommended to assist him and improve his daytoday life. (Page 15)
Is the represented person in need of a guardian? 47 In determining the need for a guardian, the Tribunal must ascertain the needs of the represented person and whether there are less restrictive alternatives to meet his needs. 48 We accept the submission of the Public Advocate that the represented person's accommodation is at risk. We accept the evidence of the retirement complex manager given at the first hearing that the smell of urine from the represented person's unit has caused complaints to be made by other residents. We accept that the represented person's eligibility to remain at the unit may be under threat because he requires a high level of care. Although the manager of the retirement complex said at the first hearing that no eviction action had been taken against the represented person at that time, it is possible perhaps even likely that, in the future, action will be initiated to evict him. To give effect to that, process orders may be sought in the Tribunal for the represented person's eviction under the RV Act. If eviction action is initiated, the represented person may need a guardian ad litem for those proceedings. We do not consider it is appropriate to circumvent the process set out in the relevant legislation. In any event, a guardian acts in the best interests of the represented person when the guardian acts to encourage the represented person to live in the general community (s 51(2)(b) of the GA Act). A guardian is also to consult with the represented person (s 51(2)(e)) and to act in manner which is least restrictive of his rights, while consistent with his proper protection (s 51(2)(f)). 49 The Tribunal accepts the description of Dr SM in his letter to Dr CB dated 15 May 2012 that the EACH service 'struggles' to care for the represented person. However, the direct evidence of the case coordinator of the EACH service is that, at the present time, the represented person is managing in his unit with existing services, although additional services would be of benefit to him. 50 Although the represented person has made it clear that he wishes to remain in his own home and asserts that he will not accept admission to a nursing home, according to Dr SM, nursing home care for the represented person is inevitable. The failure to plan for this eventuality does not mean that the represented person will not be admitted to a nursing home sometime in the future. 51 It seems possible that if the represented person could be supported with additional services, he could remain at his home for a longer period. The difficulty with this scenario is the refusal by the represented person to (Page 16)
acknowledge that he needs the care proposed, such as continence aids and other aids or ambulance transport following falls. He is reported to resist interventions, even from carers with whom he has established rapport. Indeed, in the hearing the represented person said that the current service provider was there by his consent and that he may change service providers. 52 We considered whether the EPA executed by the represented person might provide a less restrictive alternative to the appointment of a guardian to arrange for additional services and override the represented person's refusal of services. The Tribunal heard from the attorneys that the represented person does have funds to purchase additional episodes of care from a private carer to augment the EACH package service currently being provided. However, the represented person has refused assistance with the management of his finances by his attorneys and we consider that it is unlikely that he would accept their intervention in relation to services. The friend, although wanting to assist the represented person, was reluctant to impose assistance on him because of the represented person's desire for independence. In these circumstances, we do not consider the EPA provides a less restrictive alternative to the appointment of a guardian to determine the services to which the represented person should have access. 53 Having considered the evidence of the represented person, we are satisfied that he does not accept that services are required and does not appreciate the link between his refusal of services and the risk to his accommodation. We consider it is in his best interests that a guardian be appointed to accept services on his behalf, to liaise with his attorneys, and for the purchase of additional services, if this is considered necessary and appropriate by the guardian. In this way, we consider that the represented person's strongly expressed wish to remain living in his home might best be achieved. 54 The represented person says his refusal to go in an ambulance is because it has not been necessary. To date, this appears to have been correct, as no serious injuries have been reported. However, it is in his best interests that he be assessed following a fall if care providers are concerned for him. Given the professional evidence of his impaired judgment and his consistent refusal of ambulance services, we consider that a guardian should have the authority to override this refusal. 55 In relation to medical treatment decisionmaking, the evidence of both Dr SM and Dr CB, who are his treating doctors, is that they consider (Page 17)
that the represented person is unable to make reasonable judgments about his personal healthcare. Although we accept this evidence and that of Dr SM that the represented person refuses many medical aids which would assist his functioning, we consider that we should not include the function to make treatment decisions in the guardianship order. In the hearing, the uncontested evidence is that the represented person sought medical treatment for what may have been a pressure area on his buttock appropriately and in a timely way, accepted medical treatment, and apparently complied with the course of treatment prescribed. Therefore, although his lack of understanding and appreciation of his deterioration associated with his multiple sclerosis may indicate a lack of insight into his overall medical treatment, we consider that he is in an immediate sense seeking medical treatment for issues of pain and immediate ill health. Therefore, consistent with his wishes, we do not consider a guardian should be appointed for this purpose. If the represented person is taken by ambulance to hospital and requires treatment, urgent treatment may be given to him without his consent in some circumstances. Urgent treatment is defined in s 110ZH of the GA Act to mean treatment urgently needed by the patient to save the patient's life, to prevent serious damage to the patient's health or to prevent the patient from suffering or continuing to suffer significant pain or distress.
Who should be appointed guardian 56 No one else is proposed for appointment and so the Public Advocate, as the guardian of last resort, is appointed. 57 Despite the opposition of the represented person to a guardianship order being made, the Tribunal considers a limited order which appoints the Public Advocate with authority to determine the services to which he should have access, including ambulance services, is necessary in his best interests. 58 Although we accept that the represented person's judgment is impaired, we have to consider the risks to him and his expressed wishes, and make a decision which is the least restrictive in his particular circumstances. While it is submitted that wider orders should be made, we consider that a limited order with the function to consent to services on his behalf is the appropriate order. It may be that the functions to decide where the represented person is to live and to make treatment decisions on his behalf will be required in the future; if that is the case, the guardian can seek review of the order. (Page 18)
59 Given the progressive nature of the represented person's condition and the prospect of legal action to evict him, this order should be reviewed in six months' time.
Orders |