EME (Guardianship and Administration)

CITATION:	EME (Guardianship and Administration) [2020] TASGAB 35
HEARING DATE(S):	13 August 2020
DATE OF ORDERS:	13 August 2020
DATE OF STATEMENT OF REASONS:	28 August 2020
BOARD:	Ms L. Wall, Member Mr G. Dibley, Member Dr J. Breen, Member
APPLICATION	Application for Guardianship and Administration
CATCHWORDS:
LEGISLATION CITED:	Guardianship and Administration Act 1995 (Tas), ss 20, 28, 51
PUBLICATION RESTRICTION:	The decision has been anonymised for the purpose of publication

Statement of Reasons

Background

The Applicant, Ms Lyna Nadj, social worker from the Roy Fagan Centre (‘RFC’), made an Application for Guardianship and Administration dated 27 July 2020 in respect of EME (‘the Application’).
The Guardianship and Administration Board (‘the Board’) found that EME was, by reason of a disability, unable to make reasonable judgments in respect of his person and circumstances and was in need of a limited guardian. Pursuant to section 20(1) of the Guardianship and Administration Act 1995 (‘the Act’), the Board appointed the Public Guardian as limited guardian of EME.
The Board found further that EME was, by reason of his disability, unable to make reasonable judgments about matters relating to all of his estate and was in need of an administrator. Pursuant to section 51(1) of the Act, the Board appointed the Public Trustee as his administrator.
The full terms of the Orders are set out at the conclusion of this Statement of Reasons.
On 18 August 2020 EME requested a Statement of Reasons for the decision.

Hearing

The Board heard the Application on 13 August 2020.
All parties attended by telephone except for EME and the staff at RFC who attended together by video link. In attendance at the hearing were:
a.EME (the proposed represented person);
b.Ms Louella Tria (social worker RFC – replacing Applicant Ms Nadj);
c.Dr Matthew Fasnacht (old age psychiatrist, RFC);
d.Dr Ian Navin (Psychiatric Registrar, RFC);
e.Ms Valerie Hannon (Emergency Guardian. Office of the Public Guardian);
f.Ms Jessica Watson (Public Trustee);
g.ME (wife of EME);
h.NE (son of EME);
i.OE (daughter-in-law of EME); and
j.Mr Andrew Dicretico (care assistant, RFC)
The Board had before it the following documents:
a.Emergency Guardianship Order dated 16 July 2020;
b.The Application dated 27 July 2020; and
c.Health Care Professional Report (‘HCPR’) by Dr Christopher Yuen dated 27 July 2020.

Legislation

Section 20(1) of the Act provides for the appointment of a Guardian as follows:
(1) If the Board, after a hearing, is satisfied that the person in respect
of whom an application for an order appointing a guardian or an
             order appointing an administrator is made–
(a)        is a person with a disability; and
(b)       is unable by reason of the disability to make reasonable
judgements in respect of all or any matters relating to his or
           her person or circumstances; and
(c)       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.
(2) In determining whether or not a person is in need of a guardian, the
Board must consider whether the needs of the proposed
represented person could be met by other means less restrictive
of that person's freedom of decision and action.
(3) The Board must not make an order under subsection (1) unless it
is satisfied that the order would be in the best interests of the
proposed represented person.
(4) The Board must not make an order appointing a full guardian
unless it is satisfied that an order for limited guardianship would be
insufficient to meet the needs of the proposed represented person.
(5) Where the Board makes an order appointing a limited guardian in
respect of a person the order to be made is that which is least
restrictive of that person's freedom of decision and action as is
possible in the circumstances.
Section 51(1) of the Act provides for the appointment of an administrator as follows:
If, after a hearing, the Board is satisfied that the person in respect of whom an application for an order appointing an administrator or an order appointing a guardian is made–
(a) is a person with a disability; and
(b) is unable by reason of the disability to make reasonable judgements in respect of matters relating to all or any part of his or her estate; and
(c) is in need of an administrator of his or her estate–
the Board may make an order appointing an administrator of that person's estate.
(2) In determining whether or not a person is in need of an administrator of his or her estate, the Board must consider whether the needs of the proposed represented person could be met by other means less restrictive of the person's freedom of decision and action.
(3) The Board must not make an order under subsection (1) unless it is satisfied that the order would be in the best interests of the proposed represented person.
(4) Where the Board makes an order appointing an administrator of a person's estate, the order is to be that which is the least restrictive of that person's freedom of decision and action as is possible in the circumstances.
(5) An order made under subsection (1) –
(a) may be made subject to such conditions and restrictions as the Board thinks fit; and
(b) may be expressed to take effect when the represented person is aged 18 years.

Evidence

The background set out in the Application was that EME was admitted to the Royal Hobart Hospital on 5 July 2020 after a suicide attempt following an argument with his wife on a background of paranoia and cognitive decline. He was subsequently transferred to a secure unit at RFC, where he remained, under an Emergency Guardianship Order on 16 July 2020 for further assessment and care planning.
Prior to his hospital admission, EME had been living with his wife in the family home. EME’s wife, ME, and son, NE, had reported that over the previous 12 months, EME’s paranoid delusions and aggressive behaviour had increased. He had a long history of alcohol abuse and had been diagnosed with mixed alcohol and vascular dementia. His delusional jealousy that his wife was having an affair with the general practitioner had resulted in EME demonstrating verbal, emotional and physical abuse towards her. EME denied many of the allegations. His son was highly concerned for the safety of himself and ME.
The HCPR by Dr Yuen, then Psychiatry Registrar at RFC, confirmed a diagnosis of mixed vascular and alcohol-related dementia. An MRI brain scan in 2011 showed changes which were advanced for EME’s age and likely related to chronic ethanol use as well as likely damage from a previous trauma or ischaemic event. A CT brain scan of 8 July 2020 showed ‘periventricular and peripheral white matter low attenuation in keeping with chronic microvascular disease’ as well as damage from likely old traumatic injury. This disability caused deficits in receptive communication, planning and reasoning skills, impulse control and susceptibility to influence/suggestibility.
Dr Yuen reported that as a result of the dementia EME would not have the planning and reasoning or receptive communication capacity to acquire the skills necessary to manage his finances, long performed by his wife, or to manage complex legal matters.
The HCPR states also that as a result of EME’s disability expressed in his controlling behaviours, he would not have the capacity to make reasonable judgments about where he is to live. Dr Yuen formed this view on the collateral evidence from EME’s family of the delusional jealousy which had caused him to prevent his wife from leaving the house for months, and his emotional, physical and verbal abuse towards her over 12 months. EME denied many of the allegations and was unable to sympathise with how his wife felt about this. Dr Yuen opined that EME’s family would be at risk if he were to make the decision about where to live.
Dr Yuen also indicated that EME could not make reasonable decisions about health care and medical treatment as he believed there was ‘nothing wrong’ with him, and had difficulty receiving or weighing information regarding his illness. EME also lacked reasonable decision making capacity about other lifestyle domains including, relevantly, appropriate support services and visits by and to other people. If he were to make decisions about visiting with his family, it would put them at risk given his delusional beliefs and the history of abuse. Dr Yuen noted information from ME that her husband had threatened her multiple times, including with a knife.
At the hearing Ms Tria advised, and it was clear to the Board from EME’s demeanour, that he found the hearing, which involved discussion of his diagnosis and its consequences, very distressing and confronting. He remained silent throughout. Prior to the hearing he had advised that he had not asked his solicitor to attend with him. As a result, there was no challenge to the medical or any other evidence presented at the hearing, or to the making of orders, even though the staff members conveyed to the Board EME’s disagreement.
Dr Fasnacht gave detailed oral medical evidence. He confirmed the diagnosis of mixed vascular and alcohol related dementia offered in the HCPR.
He described the disturbing behavioural traits resulting from the dementia which had culminated in admission to hospital. EME’s delusional belief that his wife was having an affair with his doctor had caused behaviour creating a high risk to himself and to his wife. Whilst the dementia was not advanced, it manifested primarily through lack of awareness and empathy. Its worst aspect was the delusional jealousy about his wife’s infidelity which could not be shifted. Whilst EME had transient moments of acknowledgement, he was largely insightless about his delusions.
Dr Fasnacht had viewed photos of the padlocks on the outside of doors and windows at the family home which EME had felt he needed to control his wife, believing that he had to protect her from the doctor and contain her in the home. He had restricted his wife’s ability to leave the house for about 12 months but his fixed beliefs meant that he was unable to empathise with the effect this had on her. This inability to shift his beliefs had turned what Dr Fasnacht characterised as “a long and perfect marriage” into one that had become dangerous.
Dr Fasnacht said that Addenbrookes cognitive testing had produced a result of 70/100 when a normal result would be well into the nineties. Executive functioning showed patchy but widespread cognitive deficits. The most significant effect of the dementia, however, was the psychosis, which EME was unable to recognise.
Dr Fasnacht’s evidence was that as a result of the cognitive effects of his dementia and its behavioural consequences, EME was not able to make reasonable decisions about where he was to live. His wife and family would not agree to him returning home as this had proven unsafe for him and for them. Since EME had no insight into his psychosis, he could not make an informed decision about where he should live or about his care needs.
Similarly, EME was unable to appreciate the reason why he was restricted from visiting or even having phone contact with his wife and family. Dr Fasnacht advised that all contact had been restricted by RFC at the family’s request because it caused too much distress for EME and for them. Whenever ME had visited him, this triggered his jealous beliefs and she therefore no longer wished to have any contact with him. Dr Fasnacht believed it was in his best interests to respect that request in order to avoid distress and to avoid the likelihood of restraining orders against EME.
Dr Fasnacht confirmed Dr Yuen’s opinion that EME was unable to give informed consent to medical treatment. He had not objected to taking prescribed medications including anti-psychotic medication. The doctor, however, was concerned about relying on acquiescence to medication because EME did not have the capacity or insight to give informed consent to it. It is not without side effects, and the efficacy of it to control the psychosis in all settings, at this stage, was uncertain.
Ms Tria informed the Board that a discharge plan has yet to be finalised. The RFC team believe that independent living would be too high a risk for EME compared with the security of residential aged care. She did not believe that EME had consented to an ACAT assessment, a necessary prerequisite for discharge planning, because he did not accept that he had a disability. Consent would thus be required for ACAT assessment in order to progress discharge arrangements.
Dr Fasnacht was of the opinion that if EME were to live anywhere other than in secure accommodation, he was likely to try to go home which would put his safety and that of his family at risk.
On the issue of financial decision making capacity, Dr Fasnacht advised that ME had long managed the household finances herself and had indicated to staff that she could no longer manage her husband’s finances including their joint assets. He concurred with Dr Yuen that given EME’s brain health it was unlikely that he could at this stage in his disease ever acquire the skills necessary to manage his own financial affairs.
Ms Tria noted that there were significant financial decisions to be made connected with discharge planning, including dealing with Centrelink and residential contracts and financing as well as day to day expenditure.
Ms Hannon offered the observation that decision making about the lifestyle matters described by Ms Tria and Dr Fasnacht would likely be required long term given the intractable symptoms and behaviours, and no family member now able to provide support, even as person responsible.
In summary Dr Fasnacht supported the Application for the appointment of both a Guardian and an Administrator as being the least restrictive option in the circumstances, and in EME’s best interests.
ME said that she did not want speak at the hearing. To the extent that OE spoke for her, it was only to state emphatically that ME declined any contact with EME. The family members did not dispute the medical or any other evidence presented at the hearing - or the appointments sought in the Application. It was apparent that none of the family was able or willing to take on the role of substitute decision maker for EME.
EME, who was clearly distressed, did not wish to comment on what had been put forward at the hearing. He left the hearing without awaiting the Board’s decision.
The Board accepts the detailed and uncontradicted evidence of Doctors Yuen and Fasnacht and is finds that EME is a person with a disability and that as a result of that disability he is:
(i)unable to make reasonable decisions about significant aspects of his lifestyle including, relevantly, his accommodation and support needs, his health care and communication with his family members.
(ii)unable to make reasonable decisions about all matters relating to his estate.
(iii)in need of a guardian and an administrator

Decision

The Board Orders:

(1)The Public Guardian (Tas) is appointed as limited Guardian of EME with the power to:
i.Decide where EME is to live whether permanently or temporarily.
ii.Restrict or prohibit EME from making contact with any of his family members if the Guardian reasonably believes that such restriction or prohibition would be in EME’s best interests.
iii.Determine which services EME should access and provide consent to such as required.
iv.Make medical treatment decisions for EME.

(2)Pursuant to section 28 of the Guardianship and Administration Act 1995, any police officer; ambulance officer; the Public Guardian; any employee or agent of the Roy Fagan Centre or a residential aged care facility or accommodation where EME is staying as determined by the Guardian, are empowered to take the measures or actions specified below to ensure that EME complies with any decision of the Guardian made under this Order.
Specified measures or actions:
a.The use of such reasonable force or physical and/or chemical restraint as is necessary to facilitate transport of EME to any accommodation determined by the Guardian from time to time; and to keep EME there or return him there should he leave, contrary to the Guardian’s decision.

(3)The Public Trustee (Tas) is appointed as Administrator of the estate of EME.
(4)The Orders remain in effect until 12 August 2023

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[2020] TASGAB 35

13 August 2020