DMH (Guardianship)

[2011] TASGAB 14

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

DMH– Application for appointment of a guardian by Mental Health Services

DMH (Guardianship) [2011] TASGAB 14

REASONS FOR DECISION

Anita Smith (President)

Date of hearing: 4 August 2011

Guardianship and administration – incapacity to make reasonable judgments – need for a guardian – impact of guardian’s decisions may have financial effect – appointment of an administrator
Guardianship and Administration Act 1995 section 20, 25, 51

1. On 16 June 2011 Mental Health Services made an application for the appointment of a guardian for DMH primarily to facilitate a change in accommodation from Caroline House which was required because of her failing eyesight and decreasing mobility and the inappropriateness of that facility (which has stairs) for a person with impaired mobility and sight.  DMH is 62 years of age and has schizophrenia and encroaching blindness. 

2. When assessing an application for guardianship, the Board must be satisfied that that the person in respect of whom an application is made is (i) a person with a disability, (ii) is unable by reason of the disability to make reasonable judgments in respect of all or any matters relating to his or her person or circumstances, and (iii) is in need of a guardian.  The Board may make an order appointing a full or limited guardian in respect of that person and any such order may be subject to such conditions or restrictions as the Board considers necessary.

3. Although the application related to guardianship, the pre-hearing papers and evidence from the witnesses during the hearing also disclosed a potential need for an administrator. Section 51 of the Guardianship and Administration Act 1995 provides that if the Board, after a hearing, is satisfied that the person in respect of whom a guardianship application is made is (i) a person with a disability, (ii) is unable by reason of the disability to make reasonable judgments in respect of matters relating to all or any part of his or her estate, and (iii) is in need of an administrator the Board may make an order appointing an administrator in respect of that person’s estate.

4. The application was heard by the Board on 4 August 2011. Prior to the hearing, on 19 July 2011, the Board had made an emergency guardianship order, for 28 days, limited to the power under section 25(2)(a) to “to decide where the represented person is to live, whether permanently or temporarily”. At that time she was refusing to leave Caroline House.

1. The hearing 4 August 2011 was attended by:

   DMH

   Dr Matthew Fasnacht (Psychiatrist - Mental Health Services) – by phone

   Lyndall Jarvis  (Case Manager - Mental Health Services)

   Ainslee Allan  (Applicant - Mental Health Services)

   Louise Brickfield (One Care - escort)

   Joyce Corner (Caroline House)

   Margaret Colville (Deputy Public Guardian)

   Jessica Watson (Public Trustee)

   Danielle Lansdale (Public Trustee)

   Olivia Hill (GAB Investigator)

2. The Board had the following documents prior to the hearing:

   Health Care Professional Report completed by Dr Fasnacht on 31 May 2011

   Application received 16 June 2011

   Commonwealth Bank account balance statement dated 13 July 2011

   Application and order for emergency guardianship dated 19 July 2011

   GAB Investigator’s report dated 19 July 2011

   Aged Care Assessment Team client record dated 24 July 2011

Section 20(1)(a) and (b) – Is DMH a person with a disability and incapable of making reasonable judgments about her person and circumstances?

1. DMH stated at the hearing that she has schizophrenia.  Dr Fasnacht confirmed that this is the accepted diagnosis for DMH.  She also mentioned a range of other disabilities during the hearing (autism, obsessive compulsive disorder, brain damage resulting from shock therapy, being a “brain damaged genius,” myopia and chronic insomnia) which were not supported by Dr Fasnacht’s opinion. 

2. Dr Fasnacht noted that DMH has a number of fixed delusions, namely that she was switched at birth and has been raised in the wrong family, that her step-sister is a witch and has put a hex upon her causing her blindness.  Dr Fasnacht stated that her tendency to focus on these delusions and to continually derail conversations towards delusional material were evidence of thought disorder which impairs her ability to make reasonable decisions about suitable accommodation and eye surgery.

3. DMH made repeated statements at the hearing about the Hobart community being subject to the control of particular groups with negative intent, persecutory or fascist tendencies, particularly in respect of their treatment of DMH, including Catholics, witches, lesbians and Dutch people.  DMH denied that these were delusional statements and stated that she had rational proof that each of them was true.  DMH particularly denies that she has cataracts in her eyes or macular degeneration and that these may be causing her blindness.  She told the Board that the appropriate treatment for her blindness is that her step-sister be burnt at the stake for witchcraft, which will lift the hex and restore her sight.  She is vehemently opposed to any intervention by an optometrist or ophthalmologist or any surgery for cataracts on this basis.  She stated that the intention behind the proposed surgery was to “knock [her] off” because she is not a catholic and not a fascist. 

4. With regard to her accommodation, DMH had moved from Caroline House to the Bishop Davies Court aged care facility on 1 August 2001, 3 days before the hearing, pursuant to the guardian’s decision under the emergency order.  She stated that the accommodation was inappropriate because the other residents are old people and Dutch people and, as she is neither old nor Dutch, she does not belong there.  She agreed, however, that she found it easier to get around at Bishop Davies Court which does not have stairs.  The representative from Caroline House indicated that if DMH has surgery, she would be more than welcome back at Caroline House.  DMH stated that this was contrary to her wishes which were to have her own home with carers to look after her. 

5. The Board concluded that DMH has a disability and is by reason of that disability impaired from making reasonable judgments about her person and circumstances particularly with regard to accommodation and health care.

Section 20(1)(c) - Is DMH in need of a guardian?

1. The applicant stated that an appointment has been made for DMH to see an ophthalmologist and it is hoped that this would lead to diagnosis and treatment of what is currently thought to be cataracts.  This is, as stated above, completely contrary to DMH’s wishes.  It may, however, promote her wish to see again (but without the violent solution that she offers) and promote a wider range of accommodation options to include more age appropriate facilities or a return to Caroline House.  It is generally DMH’s her best interests to regain her sight which will promote her safety and independence.

2. Two matters concerned the Board.  One is whether, given her fervent refusal to be treated, the negative effects of distress and anxiety will outweigh any benefits of restored sight.  (Ms. D noted that DMH reacted with resistance and anxiety to any medical appointments.) The other is what effect restored sight will have upon her mental wellbeing and the fixed delusions.  Mental Health Services staff members have promoted the surgery as an appropriate option because it may assist DMH to “have a stronger bond with reality”.  Both matters appeared to require sensitive investigation by a guardian before a decision might be made to treat her eye problems against her will.

3. The accommodation issue that was mentioned in the application had been temporarily resolved with DMH’s admission to Bishop Davies Court, although some paperwork remained unattended to.  However, it was clear that if she has the eye surgery, she might return to Caroline House (where she now claims, contrary to the evidence of other witnesses, that she was never happy) or find other more age appropriate accommodation. 

4. The Board was satisfied that DMH is in need of a guardian to make decisions about where she shall live temporarily or permanently and with regard to health care.

Consequences of appointing a guardian:

1. Given DMH’s opposition to eye surgery, the Board considered that it will be necessary, if the guardian decides to proceed with an eye examination and possible surgery, to have powers to ensure that those decisions are complied with, including powers to convey and detain DMH to and at places where assessments and treatment are to occur.  Discussion at the hearing contemplated the use of sedatives to convey DMH to appointments and detain her for assessment and treatment.  For that reason, the Board considered that powers pursuant to section 28 of the Act would be required. 

2. To the Board’s knowledge, DMH’s estate is limited to her income from Centrelink and a single bank account.  DMH stated at the hearing that she is a secret millionaire.  While DMH has never displayed any difficulties in managing her finances to such an extent as would require the appointment of an administrator, if the guardian decides that DMH requires surgery, there may be advantages (in terms of reducing DMH’s anxiety in waiting long periods for surgery that she does not want) in having the surgery performed privately.  Although she does not appear to be a millionaire, DMH has sufficient funds to afford this.  She would, however, adamantly oppose using her funds for this purpose which, given the possible benefits if approved by a guardian, is an unreasonable decision.  There also remains the possibility noted in the application that if she rejects accommodation at Bishop Davies Court, she may refuse to pay accommodation fees and jeopardise her residency.  Although some administrative processes had been completed with regard to her residence there, some agreements still required signature.  The Board determined that because of these two issues, DMH is incapable of making reasonable decisions with regard to her estate. 

3. The need for an administrator is limited to the possible payment of accommodation fees and payment for assessments if required.  However, the Public Trustee has noted, arising from previous orders made by this Board, that making a limited order can put them in the position of having tasks which they cannot undertake for lack of funding.  For example, in this case an administrator could not usefully be appointed to pay for the costs of surgery unless they can also access her bank account.  Therefore, the Board considered it appropriate to make a full administration order but with the proviso that: for those transactions that DMH can manage, she continues to do so.  The only reason that the order is a full order is so that should the need arise to access funds to meet the costs of medical or optometry/ophthalmology assessments and surgery or accommodation against her will the facilities exist to do so.  If other needs arise, this would not prevent the administrator from meeting those needs within the terms of the order or from managing the estate as they see fit.  However, it is expected that they will adopt the approach to management of her estate that is the least restrictive.

Conclusion:

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 estate and her person and circumstances; and
• is in need of a guardian and an administrator;

THE BOARD ORDERS:

1. That The Public Trustee is appointed as administrator of the estate of the represented person.

2. That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.

3. That the Public Guardian is appointed as the represented person’s guardian.

4. That the powers and duties of the guardian are limited to decisions concerning:

(i)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)where the represented person is to live either permanently or temporarily.

5. To ensure that the represented person complies with any decision of the guardian in the exercise of his or her powers and duties conferred by this order, and pursuant to section 28 of the Act, the guardian and the Commissioner of Police (or his delegate) and/or the Secretary of the Department of Health and Human Services (or his delegate) may take the following measures or actions:

(i)convey, by the shortest practicable route and for the least practicable time, the represented person to and from medical appointments for health care, medical treatments or assessments, including against her will,

(ii)detain, for the least practicable time, the represented person at premises where medical assessments or treatments may be conducted for so long as is necessary to conduct the assessments or treatments, including against her will, and

(iii)consent to any measures which will reduce the represented person’s anxiety and promote her comfort before and whilst conveying or detaining the represented person as required in clauses 5(i) and 5(ii) above, if necessary, including but not limited to the covert administration of medication which is likely to sedate or relax the represented person during the relevant periods.

6. If the powers provided to the guardian in clause 5 above prove to be insufficient for purpose, the guardian is at liberty to apply in writing at short notice for a modification of the powers noting how such powers have proven insufficient for purpose and specifying the powers required.

7. That the order remains in effect to 3 August 2014.

DATED this 4th day of August 2011

…...........................

Anita Smith

CHAIRMAN