FKG (Guardianship)
[2009] TASGAB 7
•6 March 2009
GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON
FKG on the application of DR. A (Mental Health Services)
Neutral Citation: FKG (Guardianship) [2009] TASGAB 7
REASONS FOR DECISION
Susan Hill (Chair)
Kate Brown (Member)
Rod Lester (Member)
Guardianship – review of guardianship – represented person changed in behavioural patterns – medical practitioner belief that role of guardian inimical to treatment practices for people with borderline personality disorders – practitioner not available at hearing – evidence of regular and frequent attempts at suicide – need for guardian’s consent to reverse effects of attempts.
Guardianship and Administration Act 1995 s 3, 20, 67
This was an application for a review of the guardianship order made on the 2nd April 2008, whereby the Public Guardian was appointed with powers and duties “limited to decisions concerning accommodation and 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.”
The application arose from a letter of Dr A (a copy of which is annexed), dated the 19th January 2008 (sic) in which, the doctor put forward his view that, given the current change in the focus of care for persons with Borderline Personality Disorder (he referred to the work of Dawson and McMillan) and his opinion that FKG had markedly changed in her behaviour, he would recommend that the Guardianship order be revoked.
The hearing, on the 6th March 2009, at Henty House, was attended by FKG, Kylie Hillier (Office of the Public Guardian), Roslyn Stebbings (Public Trustee) and ES from Mental Health Services. Unfortunately, Dr A did not attend.
Disability
The Board members had been provided with a copy of a Health Care Professional Report prepared by Dr B on 21st February 2008, as well as Dr A’s letter and a report which contained a short “snapshot” of FKG’s behaviour over a period by Kylie Hillier. Dr B diagnosed a chronic psychotic illness and a borderline personality disorder as well as an intellectual disability. She also has a pulmonary illness and diabetes. The diagnosis of borderline personality disorder does not seem to be in dispute, nor the intellectual disability, which is presumably why FKG has been a long-term resident with Independent Living provider and relies on the assistance of some support from persons in organising her activities, travel etc. Dr A also notes that she has spent most of her life in institutions.
It was not disputed by any parties to the hearing, nor was it suggested that no disability was present. In fact this did not seem to be presented as an issue and accordingly the Board took note of the various medical reports. It accepted that FKG does have a disability, within the definition in the legislation: viz.”….any restriction or lack (resulting from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function) of ability to perform an activity in a normal manner.” (Section 3 (1))
Incapacity
In Dr A’s letter, he stated that “she (FKG) is beginning to tolerate the vicissitudes of every day life.” He noted some occasions which she tolerated, but in the past would have acted out on, in frustration. He considers that she still needs help with her finances so does not advocate revoking the administration order at present, but feels that she should now take responsibility for lifestyle matters. In saying that, he does not comment upon whether she has the capacity to do so. His point is simply that persons with this type of disability, that is borderline personality disorders, should be treated as “responsible and confident” adults, according to what he says is current medical thinking.
For FKG, the most important of these types of decisions relate to medical treatment and care. This arises due to her very frequent attempts to suicide by taking overdoses of painkillers and her consequent admissions to the Hospital including a psychiatric ward, which usually necessitate an intrusive remedial treatment (infusion). As the Board understands it, the medical evidence is not disputing that FKG has incapacity to make (or rather not make) some decisions (those relating to treatment after overdose), but rather is referring to the recommended approach to one of her disabilities, which would allow her to make these decisions (potentially to refuse treatment) and then take responsibility for the consequences or outcome.
With regard to the suicide attempts, in Dr A’s letter, he “hoped that such incidents will remain uncommon,” but adhered to his view that the Guardianship order should be revoked. Previous medical reports of Dr B and Dr C strongly emphasise FKG’s lack of capacity to make reasonable decisions and she referred herself at the hearing to not coping alone in her unit at times, which she said contributed to her self-harming actions. Dr A does not directly address the question of FKG’s incapacity, but previous, full Health Care Professional reports from Drs. C and B make it clear that she requires much support and assistance in life, which is why she resides in supported accommodation, has an administrator and the support of a Mental Health Services case worker as well as one from Anglicare. From the reports supplied by the Public Trustee and the Public Guardian it seems extremely doubtful that she could function without such comprehensive support.
The Guardian’s Role
Kylie Hillier gave the Board a written report and oral evidence as to her activities as FKG’s guardian since being appointed. First, she felt that accommodation was not now an issue, FKG now being well-settled it was agreed that decisions about accommodation would be deleted from any order.
She said that FKG’s G.P., Dr D, had always contacted her with regard to medication changes, but that she was willing to accommodate Dr A’s suggestion that FKG deal with him and this aspect herself. FKG said that it would save delays and that once, after not sleeping due to lack of medication, she had “taken to my doctor with a knife.” She will appear in Court in April on related charges.
Regarding other aspects of FKG’s health care, Ms Hillier included in her report a “running sheet” from 6th November 2008 to 3rd January 2009 to illustrate the frequency of overdose attempts and their sequelae. There are also further, similar, hospitalisations of which she wasn’t informed, including very recent ones. FKG informed the Board that she had been “doing it” about every fortnight. Ms Hillier said that after overdosing (mostly on Panadol), FKG needs an infusion, and often follow-up blood tests, as she already has liver damage and there could be further damage, also to other organs which could eventually lead to death. As Ms Hillier put it, “…the dilemma with FKG remains that if I say she can leave the hospital without treatment after an overdose it goes against the medical view that it is dangerous for her, and hence not in her best interest”.
Having said that, Ms Hillier said that first, she understood Dr A’s perspective and that secondly, she was not always contacted by the hospital. She estimated that she had only been informed of 40% of the overdoses. She has had meetings with ES and some of the doctors, but the situation is still a little confused due to the difficulty in setting up a meeting with the medical and psychiatric teams.
It is assumed this is what Dr A is referring to in his letter where he states that:
“... there has been discussion surrounding alternative means of managing problems ...” Unfortunately, as it seems that there has been no final resolution on this point and Dr A was not forth coming on the subject, not appearing, but relying on his letter, it seems that Ms Hillier’s dilemma remains, for the present.
Decision of the Board
This was agreed by members to be a most difficult situation. There is no dispute that FKG has a disability and that this disability prevents her from making reasonable decisions at times or exercising reasonable judgment. The other side of the coin is that, looking at the situation objectively, she does unreasonable things and lacks judgment – viz., her assault on her G.P. and her numerous overdoses and attempts to leave without treatment, thus putting her health at extreme risk.
What is at issue is the appropriate manner in which she can be helped. Both Dr A and ES speak of improvements in her behaviour and the current thinking regarding self determination where there is a borderline personality disorder, while at the same time, both ES and FKG state that since Christmas 2008 there have been several overdoses, FKG says on average every fortnight, the last one being last week.
Kylie Hillier states that she communicates with the G.P., Dr D, by e-mail, but given FKG’s wishes and the doctors’ comments is quite happy to step out of that situation.
More problematic are the hospital admissions after an overdose, which require urgent and more serious treatment and, on ES’s evidence sometimes restraint. In theory, Ms Hillier should be contacted on these occasions, but she believes that on the majority of occasions she is not. She has been trying to organise a meeting with the clinical team to set up a protocol for treatment.
It is not clear what would happen if FKG were to refuse treatment without the presence of the Guardianship order. The infusion treatment is largely directed towards preventing further liver damage, as Ms Hillier points out in her report. It is not known whether any or all of the overdoses are sufficient to cause immediate death, but medical evidence suggests they will certainly cause damage to an already damaged liver, at the least.
It is not clear as to what Dr A is postulating. Does he suggest that if FKG refuses treatment, that is acceptable, albeit it may cause immediate or eventual death from liver failure? Or, is he suggesting that other types of orders (initial orders under the Mental Health Act 1996 or emergency orders under the Guardianship and Administration Act 1995) may be utilised, as has been done in the past? Perhaps no order would be used, on the basis that the situation were life threatening. Alternatively, given the tone of his letter, perhaps he is optimistic that there will be no more attempts at overdosing.
In any event, the situation seems still rather volatile at present, with the frequency of admissions, even very recently. Clearly, there needs to be some set approach put in place, as Ms Hillier suggests, after discussion between all parties involved in FKG’s treatment and support. At present, this does not seem to have been achieved.
The Board will accordingly make an order limited to medical treatment only; having discussed with Kylie Hillier that it is within her discretion, and indeed responsibility, to opt out of contact with the G.P. as she sees fit or advisable. She will need to use her own discretion as the guardianship progresses and she has the power to do this. (See section 15 (2), whereby the Public Guardian “has power to do all things necessary or convenient to be done in connection with the performance of his or her functions.”) With regard to emergency treatment in the event of suicide attempts, it is noted that Ms Hillier is attempting to meet with the doctors and that meeting may well dictate future procedures and the need or otherwise for the Public Guardian’s involvement. Some resolution should have been achieved at the expiration of six months and the Board can be so advised at a review at that time, if not before. The Board accepts that accommodation is not an issue at present.
THE ORDER:
That the Public Guardian continue as the represented person’s guardian.
That the powers and duties of the guardian are limited to decisions concerning consent to any health care and that it is in the best interest of the represented person and to refuse or withdraw consent to any such treatment.
That the guardian provide a report to the Board within 6 months and a review of the order be conducted on receipt of the report.
That the order remains in effect to 1 April 2011.
Susan Hill Kate Brown Rod Lester
CHAIR MEMBER MEMBER
Date of Decision: 6th March 2009
Reasons delivered 17th March 2009
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