HE
[2013] QCAT 488
| CITATION: | HE [2013] QCAT 488 |
| PARTIES: | HE |
| APPLICATION NUMBER: | GAA2997-13 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATES: | 5 May 2013 and 20 August 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Barbara Bayne, Presiding Member Les Clarkson, Member | |
DELIVERED ON: | 20 August 2013 | |
| ORDERS MADE: | 1. The appointment of the Adult Guardian as guardian for HE for decisions about with whom she has contact and/or visits is revoked. | |
CATCHWORDS : | Guardianship – presumption of capacity – undue influence - onus of proof for lack of capacity. Guardianship and Administration Act 2000 ss 5, 31, Schedule 4 |
RELEVANT PARTIES
HE the adult
HLA daughter and applicant
LS daughter and applicant
HR son and applicant
MCDP daughter and attorney
son in law
HS granddaughter
HJ ex daughter in law
KK advocate for the applicants
HBsolicitor for HE
REASONS FOR DECISION
On 16 April 2013, the Tribunal received an application from HLA, LS and HR seeking a review of the appointment of a guardian for their mother, HE.
The applicants wish the current appointment of the Adult Guardian for contact matters made on 6 March 2013 to be extended to include accommodation, health and possibly service provision. This was the grounds that HE does not have capacity for personal and health matters and is unduly influenced and coerced in her decision making by her other daughter and attorney, MCDP.
By 20 August 2013 the applicants, and indeed their advocate, also were convinced that the attorney continues to fail to comply with the Powers of Attorney Act 1998 and that the EPA should be revoked.
The review was partially heard on 3 May 2013 then adjourned with directions to 20 August 2013.
Background
HE is 92 years of age and lives with MCDP.
HE had a stroke in 2006 and in 2008, following the death of her husband and carer, became very depressed. She experienced difficulties in managing at home alone, and moved into a care facility in September 2008. Shortly before this move, she appointed HLA, LS and HR as her attorneys.
On 13 December 2011, HE revoked the 2008 document and appointed MCDP as her attorney for personal, health and financial matters. In April 2012, HE left the care facility and went to live with MCDP.
On 14 August 2012, the Tribunal found that HE had capacity to execute the Enduring Power Of Attorney dated 13 December 2011. On the same day, the Tribunal dismissed an application for the appointment of a guardian and adjourned, with directions, the hearing for an administrator.
On 6 March 2013, the PTQ was appointed as HE’s plenary administrator until further order. Following a further application from HLA, LS and HR, the Adult Guardian was appointed on the same date as HE’s guardian for contact matters for five years.
On 10 April 2013, HE was admitted to the RBWH, and was discharged home on 17 April 2013.
There is, and has been for some years, great animosity between the applicants and MCDP.
Review of the Appointment of a Guardian
Section 31 of the Guardianship and Administration Act 2000 provides for the appointment review process; at the end of a review, the Tribunal must revoke the order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made.
The first issue therefore in this case was HE’s capacity for personal and health matters. Before the Tribunal can consider any need for an appointment[1] and the appropriateness of any proposed appointee[2], it must be satisfied that the adult lacks capacity for the matter.
[1] Compounded in this case by a valid EPA.
[2] Sections 12 14, 15 and 16 of the Act apply.
HE is presumed to have capacity in accordance with section 7 of the Act and General Principle 1 under Schedule 1 of the Act. Unless there is sufficient evidence to rebut that presumption, it must stand.
Capacity for a person for a matter[3] means the person is capable of-
(a) understanding the nature and effect of decisions about the matter; and
(b) freely and voluntarily making decisions about the matter; and
(c) communicating the decisions in some way.
[3] Schedule 4 of the Act.
Given the strong contention as to HE’s capacity in this case, each element of her capacity in terms of personal and health matters is considered in turn.
(a) Can HE Understand the Nature and Effect Of Decisions about Personal and Health Matters?
At the hearings on 3 May 2013 and 20 August 2013, HE was able to respond reasonably to questions put to her and gave an acceptable, if not in depth, account of her views and wishes. It was clear however that she was unable to remember all details instantly, and did look for guidance and/or support on some occasions. She demonstrated at both hearings no hesitancy in responding to any question put to her by the Tribunal, or by any other party[4].
[4] Thus negating any need for an Adult Evidence Order (s106 GAAA2000).
HE has been assessed by a number of health professionals over several years, several of whom had provided various reports and other documents relevant to HE’s ability to understand the nature and effect of decisions. The opinions 2011-2013 of Dr VP, consultant physician and geriatrician, Dr TD, treating general practitioner and Professor BG, consultant psychiatrist, concur in that they all consider HE demonstrates mild cognitive deficits, poor short term memory and an MMSE[5] of about 25/30. Despite her perceived difficulties, the medical practitioners are consistent in their opinions that HE had the cognitive ability to make decisions about her personal matters.
[5]Mini Mental State Examination - a commonly used test of memory. It can be used to help diagnose dementia and to help assess its progression and severity.
At the hearing on 6 March 2103, Dr VP agreed with Professor BG’s written opinion that there is no evidence of a progressive dementia. Consistent with recovery after a stroke, he considered that HE’s cognitive performance improved after admission to the Care Facility, even up to the time she left in April 2012.
The latest report, dated 25 June 2013, is from Dr KC, a consultant geriatrician, instructed by the Adult Guardian as directed in the Tribunal’s order dated 3 May 2013. Dr KC’s view is that HE “has capacity to make health and lifestyle decisions”.
It is evident from the documents dated 10 to 17 April 2013 from the Royal Brisbane and Women’s Hospital that HE was admitted following an episode of acute confusion and agitation associated with urinary retention; an MMSE score of 15/30 was recorded at the time. The treating team, including Dr RL, Specialist, Internal Medicine, advised that the retention was resolved the next day and that there were no concerns on discharge; the team considered that HE was back to her baseline.
Although MCDP recognised some limitations in HE’s memory and functioning, she considered that her mother was able to make all her own decisions, including those of contact with the applicants. She emphasised that the stress of numerous Tribunal hearings, and the “constant bickering” of the family had not been easy for HE, particularly in the hearings. HS agreed that HE was capable of making her decisions about her own personal and health matters.
LI told the Tribunal that HE had no memory – “no short term memory, no long term memory and no mid long term memory, no memory at all” - and that this had previously been proved at three hearings. LI considers that HE had “got health decisions wrong”[6], and this demonstrated her inability to make these[7].
[6]Referring to incidents involving a tick, a fall, and some refusal of medical treatment some years ago.
[7]Largely refuted by Dr VP on 6 March 2013: “There are reasons why (patients) refuse… (I) don’t regard refusal as an inability to make a choice”.
KK expressed concern that the Tribunal might overly rely on the health professional reports and opinions on file. She challenged the veracity of many of these, advising that there were problems with all the health professional reports and most of them were not contemporaneous:
(a)Dr TD had been discredited as a personal friend of MCDP and his report contained no MMSE score
(b)Professor BG’s reports had been thoroughly rebutted twice by LI and Professor GB had not given evidence at hearing on 6 March 2103
(c)Dr VP’s reports and opinions were very dated.
KK and the applicants strongly dispute Dr KC’s report and his conclusions. KK submitted “holistically… it can’t be relied on”. She considered the report to be “ substantially flawed” for reasons including:
a)Significant omissions
-diagnoses of dementia left out, cognitive impairment missed
-no breakdown of the MMSE score
b)Errors of fact - some dates, names and details incorrect, HE’s hearing recorded as normal
c)Failure to follow QCAT directions with regards to Schedule 4 of the Act
d)No differential between simple and complex matters, and some comments on financial matters
e)Dr KC hadn’t read some of the health professional reports and comments available
f)Dr KC was unavailable to talk to his report
g)His comments that HE is well supported socially were ludicrous in that she is alienated from many of her family.
Discussion
Essentially, this element of capacity is a process-based criterion, the process being the bringing to bear of the information that is needed to make the decision. The use of information in a decision making process may not necessarily always be conventional but should be at least rational.
The existence or absence of a diagnosis of a medical condition is not determinative of impaired capacity: it is merely one factor taken into account when the Tribunal considers how a person’s functioning is impaired in the decision making process about a particular matter. Although, for example, a disorder causing impairment of cognitive functioning might compromise capacity, incapacity cannot be assumed solely because of such a diagnosis.
The evidence in this case supports, and the Tribunal accepts, that HE has short term memory deficiencies and mild cognitive impairments.
The Tribunal finds however that HE clearly has some working memory, is able to hold a simple, but reasonable and rational, conversation and is able to seek support or explanations where and when she so requires. She also demonstrates some basic reasoning, judgement and understanding of consequences of her decisions with some awareness and insight into her impairments.
The Tribunal is persuaded:
(a)The errors and omissions identified in Dr KC’s report are not substantive enough to refute its findings. Dr KC’s opinions and findings are very similar to those of Dr VP and Professor BG
(b)The RBWH experience was a once-off occasion and during this time HE was very ill. Although her medical condition and her cognitive functioning were obviously significantly compromised at the time, she recovered spontaneously within a week or so.
The Tribunal accepts the medical evidence of Dr VP, Dr TD, Professor BG and Dr KC. There is a persuasive consistency throughout these reports and medical opinions from four health professionals who had examined HE over a period of time. Each doctor considers that HE had the cognitive ability make her own personal and health decisions; Dr VP considers she continued to improve over the time he knew her.
The Tribunal finds that the evidence from HE herself serves only to reinforce the opinions of the health professionals.
The Tribunal has two essential sources of evidence: that in support of HE’s capacity, which includes the health professional reports (excluding those from the RBWH), reinforced by the evidence from HE herself and that against, the contentions of KK and the applicants.
Under the circumstances, the Tribunal puts greater weight on the opinions of the health professionals. There is no logical justification for the Tribunal to favour the largely unsubstantiated assertions of KK and the applicants.
The Tribunal considers that HE’s personal and health matters, particularly given her age and current circumstances, are relatively straight forward. As conceded in the application, HE leads a simple lifestyle.
The Tribunal finds that HE has sufficient cognitive ability to understand the nature and effect of decisions about her own personal and health matters, none of which appear to be complex.
(b) Can HE Freely and Voluntarily Making Decisions about the Matter?
The submissions from the applicants and KK repeatedly claim that HE is unable to make decisions freely and voluntarily because of undue influence or coercion by MCDP.
In the hearings on 3 May and 20 August 2013, HE herself indicated that she was happy and settled in her current accommodation and satisfied with the current circumstances of her life, and wished to stay where she is. She stated she did not want contact with the applicants. HE admitted on 3 May 2013 that, in terms of the family conflict, she had a tendency to ignore difficult or unpleasant matters hoping that they would just go away.
MCDP believes that the claims and accusations made by the applicants regarding undue influence are unsubstantiated. She denied all accusations that she is blocking contact, informing that HE was free to use the phone any time she wished and often did answer the phone.
HS agreed that HE does use the phone and that MCDP never makes any effort to stop her. HS considers that HE is hurt, and “doesn’t want to see certain members of the family”, although this might change in time. HJ writes that HE “wishes have been consistent, clear and unwavering”.
In various written and verbal submissions, KK and the applicants argued that HE is unable to make her own health, contact, accommodation and probably service decisions because of “inducement”, “undue influence”, “fixed false beliefs” and “overpowering negative influence”.
The applicants are convinced that MCDP has “poisoned” HE’s mind against them. They consider that HE holds false beliefs and assumptions because of the undue influence of MCDP. HR stated that the power is with MCDP.
KK submits that the following are undeniable evidence of undue influence:
(a)MCDP efforts to activate her EPA in the RBWH on 13 April 2013
(b)MCDP efforts to ban hospital visits by the applicants without the authority to do so
(c)MCDP does not facilitate HE’s contact with the applicants. She is in fact thwarting it. Contact was never a problem at the Masonic Lodge
(d)HE had a 2.5 hour visit from LS in the RBWH on a morning in April 2013 when MCDP was not there.
KK believes that there is compelling evidence, as demonstrated by the RBWH episode, to support that when MCDP is not there, HE wants to see the applicants. When MCDP is present, HE does not want to see them.
KK and the applicants consider that the current contact order is unworkable because of HE’s current accommodation with MCDP. If HE lived in a neutral environment, she would want to see her children; a change of residence is therefore imperative. Contact decisions by the Adult Guardian can therefore only work if the Adult Guardian has authority for accommodation (and service matters).
Dr VP in his report dated 27 April 2012[8] refers to undue influence of MCDP primarily in terms of HE’s wish to leave the car facility. In the hearing on 6 March 2013 he qualified this reference, stating that:
[8] Written from a medical rather than a legal perspective.
(a)He had not fully canvassed HE views in terms of ‘freely and voluntarily’
(b)The ‘undue influence’ was probably more of a “fairly strong” inducement to move out of the care facility with which HE had issues with food and staff members
(c)He agreed that there did not seem to have been any ill-considered motive or that HE had felt overborne and had no other choice except to reside with MCDP. He repeated that it was “more an issue of inducement rather than being forced to make a decision to go or not to go”.
(d)He agreed that HE did defer[9] to others including MCDP. He explained that ‘head turning’ was often part of vascular dementia, was not indicative of undue influence, and was more an indication of deferring to others when not sure of answers. In his view, this didn’t equate to coercion.
[9]As did RN TC in a HPR received on 26 April 2012 and an Affidavit dated 13 August 2012.
Ms PL, as guardian for contact, visited HE at home on 5 April 2013. She and a colleague had spent about 20 minutes alone with HE and some time with MCDP present. HE was “adamant that she did not want to visit with her children”. Ms PL considered that, regardless of the reasons why, this was a genuine wish.
Ms BA and one other guardian visited HE at home on 16 July 2013 and spent about 30 minutes with her. Although HE did not elaborate on her reasons “of what they had done to her”, both guardians were satisfied that HE did not want contact with the applicants.
The delegate guardians had on both occasions been guided by what they both thought to be HE’s clear wishes and made no decisions about contact. They also acknowledged that, under the circumstances, this would have been futile.
HB argued that HE simply doesn’t want contact with the applicants. There no evidence of any undue influence and HE had made this decision freely and voluntary.
Discussion
In law, the doctrine of undue influence refers to a situation where the weaker party is influenced into entering into an agreement[10]. Mason J stated[11] that with undue influence: "… the will of the innocent party is not independent and voluntary because it is overborne".
[10] See for example Commercial Bank of Australia Ltd v Amadio(1983) 151 CLR 447.
[11] At 471.
In respect of the Act, this Tribunal endorses the views of the Tribunal in ZJ[12] to the effect that the free and voluntary aspect of the definition of capacity relates to volition and whether a person’s free will has been so overborne that there is an inability of that person to make up his or her own mind and to make his or her own decisions.
[12] Re [2006] QGAAT 36.
KK and the applicants submit that MCDP is exerting control over and influencing HE to the extent that she is preventing her mother from freely and voluntarily making decisions, particularly for contact. The inference is that HE has no choice but to abide by the decisions made for her by MCDP and has no say in decisions that should have been hers to make.
The Tribunal puts particular weight on the evidence from HE herself, Dr VP and the delegates of the Adult Guardian. The Tribunal accepts that HE was very ill during her hospitalisation in April 2103. In terms of HE’s volition, the Tribunal is unable to put very much weight on the events which occurred in the RBWH over that time.
The Tribunal accepts that:
(a) HE has maintained that she does not want contact with the applicants. She has been clear and unwavering for at least the past eighteen months
(b) She has expressed this in a range of settings and to various people, including Dr KC, the Tribunal and the representatives of the Adult Guardian
(c) HE does hold some negative views and/or beliefs in regards to the applicants. She has maintained these for some time
(d) There is no demonstrated link between any views held by HE and the influence of any particular individual.
The Tribunal disagrees with the views of KK and the applicants. They have, in particular, not produced any independent evidence that HE is or has been unduly influenced in relation to contact matters, or indeed for any other personal and health matter.
The Tribunal recognises that it is not unusual for older people to rely on family members for support with their daily needs and care. It is also accepted that most people are influenced by family members or other persons, particularly in a supportive relationship.
HE is probably relying on MCDP and her family for some support for decision-making. Given her age and frailty and in particular the provisions of s5(e) of the Act, the Tribunal considers that this is not inappropriate. There is no evidence before this Tribunal to support that any susceptibility to suggestion and influence on HE impacts on her ability to make her own decisions.
The law and particularly the question of the onus and standard of proof in a case of undue influence was stated in 2009 by Vickery J[13]: “The party or parties who make the allegation of undue testamentary undue influence … bear the evidentiary onus of making good the claim”.
[13] Nicholson & Ors v Knaggs & Ors [2009] VSC 64.
It is not sufficient for the applicants to make a range of unsubstantiated assertions; on examination, there is nothing substantial in the evidence submitted by KK and the applicants. There is insufficient evidence to support that HE’s free will has been so overborne that she in unable to make up her own mind and to make her own decisions.
The Tribunal therefore finds that the presumption of capacity for HE to freely and voluntarily make her own decisions about her personal and health matters has not been overturned.
Can HE Communicate her Decisions in Some Way?
There is no suggestion from the applicants, nor any other evidence before the Tribunal, that HE is unable to communicate her decisions.
Conclusion
The Tribunal finds that the applicants have not provided sufficient, relevant and reliable evidence to support their assertions.
The Tribunal finds that the presumption of capacity for HE for all personal and matters is not rebutted in terms of her understanding the nature and effect of decisions about the matter, freely and voluntarily making decisions about the matter; and communicating the decisions in some way.
The Tribunal must therefore revoke the current appointment of the Adult Guardian for contact and/or visits.
Orders are made accordingly.
Other Comments
Several issues have been raised by KK and the applicants, some of which are not relevant to the deliberations of this Tribunal or under its current jurisdiction. As the advocate and applicants clearly believe these are so, it is pertinent to make some comment.
There is also no evidence to support that the decisions with regards to any of HE’s personal and health matters are inappropriate, or detrimental to HE.
KK and the applicants consider that the attorney continues to fail to comply with the Powers of Attorney Act 1998 and that the EPA should be revoked in this hearing.
The assertions of improper conduct by the attorney are not supported by any evidence before this Tribunal. In addition, the attorney has not formally taken up her role, and in light of the findings today, she is not authorised to do so at this time.
Finally, the Tribunal acknowledges that all parties demonstrate what seems to be a genuine concern for the wellbeing of HE. In particular it is extremely understandable that the applicants wish to have an ongoing relationship with and involvement in decision making for their mother. It is however up to her to determine.
2
0