DMB (Guardianship)

[2012] TASGAB 4

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

DMB – Application for the Appointment of a Guardian by EB

Neutral citation: DMB (Guardianship) [2012] TASGAB 4

REASONS FOR DECISION

Anita Smith (President)

Date of Hearing: 14 March 2012

Guardianship – best interests – freedom of decision and action - need for cohesive rehabilitation plan to recover from effects of mental illness – comparison of effectiveness of emergency based Mental Health Act orders against longer term guardianship.

Guardianship and Administration Act 1995 – s. 6, 20

1. DMB is a 32 year old woman who at the time of the hearing was resident at the Wilfred Lopes Centre pursuant to a Continuing Care Order and a transfer under section 72B of the Mental Health Act 1996 (the 72B order). Her father has applied for the appointment of a guardian for her pursuant to section 20 of the Guardianship and Administration Act 1995 (the Act).

History of Orders:

1. DMB has been the subject of continuous administration orders appointing the Public Trustee as her administrator since 3 October 2001.  The most recent order reappoints the Public Trustee until 2013.  DMB was the subject of an emergency guardianship order for 28 days in 2006.  She has also been the subject of a determination by the Board for consent to medical treatment (with respect to antipsychotic medications) since 7 January 2011.  That consent expired on 4 February 2012.  The Board appointed an emergency guardian for DMB on 7 February 2012 with powers limited to health care decisions, which was renewed on 9 March 2012 for a further 28 days. 

The Current Application:

1. EB applied for the appointment of a guardian for DMB, his daughter, on 23 January 2011 but the requisite Health Care Professional Report was not received until 7 February 2012, hence the need for emergency orders while this application was being processed. EB sought the appointment of the Public Guardian as guardian. The Board cannot grant EB’s application unless it is satisfied that DMB is a person with a disability, who is incapable by reason of that disability of making reasonable personal judgments and is in need of a guardian. Additionally, the Board must ensure that any order made is the least restrictive alternative and that we have given consideration to the principles in section 6 of the Act.

1. The hearing was attended by:

   DMB

   DB – Mother

   EB – Father and applicant

   KJ - Aunt

   Dr. David McDougall – Wilfred Lopes Centre

   Lisa (registered nurse) Wilfred Lopes Centre

   Margaret Colville – Deputy Public Guardian

1. After the hearing had commenced and about 75% completed, DMB sought an adjournment to seek legal advice. At that point she asserted that she had received inadequate notice of the hearing. DMB had with her a complete copy of the application and was familiar with the contents of the application. The Board’s record showed that notice was transmitted to the Wilfred Lopes Centre where she lives on 27 February 2012 which would be compliant with the time requirements in section 69 of the Act if it was immediately conveyed to her. DMB asserted that staff of the Centre had not passed that notice onto her – her assertions that she was unaware of the hearing were disputed by her family members. This statement was unable to be denied or proven by Centre staff attending the hearing.

1. Taking into account that:

   ·     It was not immediately possible at the time of the hearing to determine whether or not DMB’s notice had been delivered by Centre staff when sent by the Board.

   ·     DMB had been on emergency guardianship orders since 7 February 2012 which would proceed to 6 April 2012 in any event if an order was not made on that date, or the Board could make an interim order on adjournment in any case.

   ·     DMB has an opportunity to seek a review of the order after it is made, including immediately after it is made and there are no costs associated with that.

   ·     The hearing was almost concluded at the point at which she raised the notice issue and sought an adjournment for legal advice.

   ·     DMB found the discussions during the hearing distressing and it was obvious that the hearing process was difficult for her family members and potentially damaging to family dynamics.

   The Board took the view that there was no prejudice to DMB in proceeding to the conclusion of the hearing, given that she has an opportunity to put evidence and submissions directly or through counsel in any subsequent application for review.  Accordingly the application to adjourn was denied.  The Board undertook to seek clarification from the Wilfred Lopes Centre staff about when the Board’s notice was delivered to DMB and to make clear the Board’s expectations for immediate delivery of hearing notices in that facility.

1. DMB, at times in the hearing, indicated that she did not want to stay for the hearing and left for short periods, but later resumed her attendance.  As she was warned upon her departures, the hearing proceeded in her absence. 

Is DMB a Person with a Disability? (Section 20(1)(a))

1. Dr. David McDougall completed the Health Care Professional Report regarding DMB.  He stated in that report that DMB has schizoaffective disorder and that this has been a fairly constant diagnosis applied for a number of years. He spoke to that diagnosis during the hearing.  DMB disagrees with that diagnosis and states that she has Attention Deficit Hyperactivity Disorder which was diagnosed by psychologist HP some 8 years ago.  The other witnesses did not support DMB’s view.

1. Records received from the Mental Health Tribunal pursuant to section 85(1)(b) of the Mental Health Act 1996 included the opinion of Dr. Baruch Shahal (Staff Specialist at the Department of Psychological Medicine at the Royal Hobart Hospital) which confirmed Dr. McDougall’s diagnosis and noted that in January 2011 she was floridly psychotic.

1. The Board was satisfied that DMB is a person with a disability, namely schizoaffective disorder.

Is DMB Incapable by Reason of Her Disability of Making Reasonable Personal Judgments? (Section 20(1)(b))

1. Dr. McDougall’s report stated that DMB has impaired insight into her illness (evident from her self-diagnosis of Attention Deficit Hyperactivity Disorder) which limits her ability to assess the pros and cons of antipsychotic medication.  She stated incorrectly that a suggested antipsychotic drug would “cause liver failure within five years” and also had recently declined treatment on the basis that it might harm her foetus, although she was not pregnant.  Dr. McDougall also noted that DMB’s disability causes her deficits in respect of her receptive communication, her impulse control, her susceptibility to influence and her planning and reasoning skills. 

1. Dr. McDougall’s report also noted deficits in DMB’s abilities to make decisions that promote her own safety, noting her vulnerability to sexual and financial abuse occasioned by her poor accommodation and relationship choices.  DMB characterized these issues differently as ‘spontaneity’ or responding to unspecified personal threats.

1. In his evidence in the hearing, which was vigorously challenged by DMB, Dr. McDougall noted DMB’s distrust of psychiatrists (a belief that psychiatrists have experimented upon her) and also an inability to adhere to a decision once made. He gave examples of her fluctuating in her decisions to take or not to take medication over short periods of time (for instance three times in one week). 

1. EB told the hearing of examples over the years to encourage DMB to take medication consistently to maintain her health and wellbeing and her opposition to such advice or her lack of understanding of such advice.  Again such evidence was vigorously challenged by DMB’s questions and rebuttal of her father’s statements. 

1. The Board was satisfied on the basis of medical opinion and the examples of decision making given that DMB lacks capacity to make reasonable decisions about her person and circumstances. 

Is DMB in Need of a Guardian?

1. As the history of orders for DMB demonstrates, she has been the subject of substitute decision making regarding consent to medical treatment for over 12 months. Without substitute consent, she would either reject treatment or prevaricate about treatment decisions. The optimal treatment for DMB would be treatment with Clozapine which has been proven to have positive results for DMB in the past. Clozapine treatment requires a degree of cooperation from the patient, and without that cooperation alternative treatments may be needed. Given the reports of DMB’s florid psychosis, as recently as January this year, the Board was satisfied that a need exists for substitute consent on DMB’s behalf for medical treatment. Such consent can be given by a guardian or it can be given in accordance with the provisions in Part 6 of the Act.

1. EB and DB acknowledged their potential, as persons responsible under Part 6 of the Act, to give consent on DMB’s behalf. However they affirmed their desire not to take that role with respect of their adult daughter because of the impact that has on their already difficult family relationships. Accordingly, they have declined to give consent as persons responsible. As DMB refuses treatment, deemed consent pursuant to section 41 is also unavailable. Therefore, valid authority for treatment (outside of emergencies) would only be available with either the appointment of a guardian or by the Board’s consent under Part 6 of the Act.

1. The applicant also detailed DMB’s recent history, that in the past three years, DMB has been out of hospital for only six weeks.  DMB’s family members expressed a desire that there be some considered planning, as opposed to emergency responses, to DMB’s future care and accommodation.  DMB’s family expressed a desire that DMB be offered more than recovery but move towards rehabilitation through supported accommodation and education opportunities.  DMB’s current accommodation at the Wilfred Lopes Centre arose because while in the Psychiatric Intensive Care Unit (PICU) she assaulted a patient that she stated had sexually assaulted her.  The records of the 72B order noted that she had been aggressive and abusive to patients and staff in the PICU.  Her Continuing Care Order under the Mental Health Act 1996 will continue until 20 July 2012.

1. DMB made it clear that she would object to supported accommodation and stated that she wanted to return to her parents’ home.  Her parents stated at the hearing that it is not possible for them to provide accommodation for her.  The applicant detailed his concern that DMB has in the past absconded from supported accommodation places to Melbourne on a one-way ticket with no access to cash.  The result of these incidents was that she had been exposed to manipulation and abuse in run down boarding houses.  To date, DMB’s parents have only been able to avoid such risks by calling the Police.  Calling the Police to restrain their daughter has also had a negative impact on family relationships.

1. Dr. McDougall explained than when DMB leaves the Wilfred Lopes Centre, she may be returned to the PICU and that this may occur prior to the expiry of the Continuing Care Order.  Either way, decisions about where she shall live temporarily or permanently will be dictated by the terms of the Continuing Care Order until 20 July 2012.  The issue for the applicant was to ensure that supported accommodation may be arranged, available and compellable past the expiry of the Continuing Care Order as well as being coordinated with treatment decisions.

1. The Board suggested to the parties that an order could be made which provided for the appointment of a guardian to immediately be able to make health care decisions but to have a delayed power to make decisions about where DMB shall live temporarily or permanently to commence upon the expiry of the Continuing Care Order.   The Board proposed such an order as a less restrictive alternative to making an order for accommodation decisions from the time of the hearing when the presence of a Continuing Care Order already covers that field. 

1. The Deputy Public Guardian agreed that the Continuing Care Order continues until July and noted that it was unlikely that DMB would recover capacity or that the need for accommodation decisions would resolve in that period.    The Deputy Public Guardian also favoured the less restrictive alternative of a delayed start to the accommodation powers.  Given the history of absconding to Melbourne, such an accommodation power needed to be supplemented by the ability to restrict interstate travel. 

1. Although DMB has made choices around relationships with men in the past which have been detrimental to her best interests, there was no evidence presented by the parties to suggest that there was a need for a guardian to restrict access to visitors. 

1. While alternative sources for accommodation decisions and medical treatment decisions certainly exist pursuant to Part 6 of the Act and under a Continuing Care Order under the Mental Health Act 1996, these options will not have the benefit of coordination and consistency that the applicant has satisfied the Board is necessary for this young woman is to recover and flourish in a safe environment.  This is because such decisions are made by different tribunals according to different statutory tests and most likely at different times and stages of recovery, and therefore different evidence.   A guardian, being one person exercising authority in both areas, has a greater chance of responding in accordance with a long term plan and on the basis of a developing relationship with DMB and her carers.

1. Emergency and uncoordinated responses to DMB’s illness have seen her hospitalized for the better part of three years and the evidence suggests that she has regressed under that regime.  A guardian, having decision making powers over health care and accommodation can provide a unified approach to these decisions and promote consistency and coordination as well as promoting her rehabilitation and freedom.  On the basis of the application, written materials and the evidence given at the hearing, the Board concluded that DMB is in need of a guardian, but that such appointment is capable of limitation in content and time as reflected in the orders below. 

The Nomination of the Public Guardian as Guardian:

1. The applicant sought the appointment of the Public Guardian and there were no other nominations for appointment.   The Deputy Public Guardian indicated the consent of her office to appointment at the hearing.  

The Duration of the Order:

1. Dr. McDougall sought that the order be reviewed after one year to reflect the possible effects of treatment with Clozapine over one year.  When questioned, Dr. McDougall explained that DMB will have appropriate levels of Clozapine in her system after between one and two months of treatment, then a therapeutic response may be detected a further six weeks after that time (end of June) if she does not withdraw her cooperation (as has happened in the past).  At that point decisions may be made about future accommodation as the Continuing Care Order will be due to expire.  Dr. McDougall agreed that it is unlikely that DMB will have stable accommodation and medication by December 2012. 

1. While the Board is concerned to make an order that is less restrictive, the Board was also concerned that one purpose of the order is to promote longer term consistency than has been available to her in the past three years as a voluntary patient or under the scheme of Mental Health Act orders.  Given the changeability in her responses to treatment, the Board considered that one year will not be sufficient time for her to have demonstrated a positive response to treatment and for her to be settled in appropriate accommodation.  Accordingly the Board determined that a two-year order better reflects the possible rate of rehabilitation and the accommodation services available through the mental health system in Tasmania. 

Conclusion:

After hearing an application by EB of Hobart in respect of DMB (hereinafter called the ‘represented person’)

The Board was satisfied that the represented person

•is a person with a disability, and

•is unable by reason of the disability to make reasonable judgments in respect of her person and circumstances; and

•is in need of a limited guardian;

THE BOARD ORDERS

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

2. That the powers and duties of the guardian are limited to:

   (i)decisions concerning consent to any health care that is in the best interests of the represented person and to refuse or withdraw consent to any such treatment, and

   (ii) from the 19 July 2012 decisions concerning restricting interstate travel, and

   (iii) from the 19 July 2012 decisions concerning where the represented person is to live whether permanently or temporarily.

3. That the order remains in effect to 13 March 2014.

Anita Smith

PRESIDENT