HHE (Guardianship)

CITATION:	HHE (Guardianship) [2019] TASGAB 13
HEARING DATE(S):	14 June 2019
DATE OF ORDERS:	14 June 2019
DATE OF STATEMENT OF REASONS:	3 July 2019
BOARD:	Mr R Grueber Dr M Fasnacht Mr M Stoddart
APPLICATION	Application for Guardianship
CATCHWORDS:	Administration – traumatic brain injury secondary to falls and alcohol misuse – consent for medical treatment – capacity – discretion to make administration order on application for guardianship
LEGISLATION CITED:	Guardianship and Administration Act 1995 (Tas), ss 6, 11(4), 20, 24, 51(1), 53.
PUBLICATION RESTRICTION:	The decision has been anonymised for the purpose of publication

Reasons FOR DECISION

Application

Ms Georgina Lithgow, who is a social worker employed by the Tasmanian Health Service, filed an Application for Guardianship in respect to HHE on 14 May 2019.

Hearing

The Application came before the Board for hearing on 14 June 2019.
The following persons appeared at the hearing:
·Ms Georgina Lithgow (the applicant).
·HHE (the proposed represented person).
·Ms Nicky Targett (Office of the Public Guardian).
·Mr Andy Semmler (Case manager, Community Options).
·Ms Melissa Green (Social worker).
·UE (HHE’s son).
At the hearing the Board had the following documents:
a)    Application for Guardianship.
b)    Health Care Professional Report (‘HCPR’) by Dr David Lang, psychiatrist, dated 13 May 2019.
c)    Alcohol and Drug Services file review dated 24 May 2019.

Guardianship and Administration Act 1995

Section 20 of the Guardianship and Administration Act 1995[1] (‘the Act’) provides that the Board may make an Order appointing a full or limited guardian in respect of HHE if it is satisfied that:
a)He is a person with a disability; and
b)He is unable by reason of that disability to make reasonable judgements in respect of all or any matters relating to his personal circumstances; and
c)He is need of a guardian.
[1] Guardianship and Administration Act.1995 (Tas), s20.
In determining whether or not an Order should be made the section requires:
a)    The Board to consider whether the needs of HHE could be met by other means less restrictive of his freedom of decision and action.
b)    The Board must be satisfied that an Order would be in HHE’s best interests.
c)    The Board must not appoint a full guardian unless it is satisfied that an Order for limited guardianship would be insufficient to meet the needs of HHE, and if an Order is made appointing a limited guardian the Order must be the least restrictive to HHE’s freedom of decision and action as possible in the circumstances.
The Board must also have regard to the general principals in section 6 of the Act[2] as following requirements in respect to the performance of a function under the Act that:
a) The best interests of HHE be promoted; and
b) The wishes of HHE are, if possible, carried into effect.

Evidence

[2]Ibid, s6.

The Board is not bound by the rules of evidence and can inform itself as it sees fit[3]. It may therefore take the contents of the application as evidence.
[3]Ibid, s11(4).
The Application states that HHE had a traumatic brain injury secondary to a ten-year history of chronic alcohol misuse and falls. His cognitive assessments reveal significant impairment with deficits in executive functioning, language, orientation, recall and abstraction. HHE self-reports consumption of four litres of wine per day and has been unable to curtail his drinking despite understanding that it is harmful to him. HHE has had multiple presentations to the Department of Emergency Medicine, Royal Hobart Hospital for alcohol misuse, seizures, multiple falls, severe and poorly managed psoriasis, suicidal ideation and bacteraemia.
In the Application Ms Lithgow states that HHE demonstrates a lack of insight into his state of health and does not comply with recommended treatments. This has included discharging himself from hospital against medical advice, noncompliance with outpatient treatment for a serious skin condition and inconsistent engagement with alcohol treatment. Ms Lithgow contends that a guardian is needed to consent to medical treatment, including inpatient treatment where medically indicated, and also to consent to services to support HHE’s health and wellbeing in the community.
In the Application Ms Lithgow says that medical and allied health staff have attempted to ensure appropriate support for HHE in respect to his healthcare. He has been accepted for case management with the Community Options service. Community Options is a service provided by the Department of Health and Human Services to provide case management to assist with access and coordination of care. Case management would assist with supporting HHE to attend medical appointments and obtain services through the National Disability Insurance Scheme (‘NDIS’). HHE has resisted engagement with Community Options. As a consequence HHE is receiving minimal community support. HHE recently agreed to an admission for inpatient management of his alcohol use disorder but avoided attempts by Community Options to transport him for that purpose. He is currently receiving minimal community support.
The Application proposes the appointment of the Public Guardian as HHE’s guardian.
The Board was provided with a HCPR by Dr David Lang, who is a psychiatrist with Community Mental Health Services. Dr Lang examined HHE on 3 May 2019. He considered that HHE had a disability, being an acquired brain injury resulting from falls and alcohol use disorder. He notes that the disability has been worsening over a period of five years and is deteriorating. In terms of prognosis Dr Lang’s opinion is that, given HHE’s ongoing alcohol dependence, his recurrent falls and likely cerebrovascular disease, his cognition is likely to steadily worsen. The report notes that HHE’s deficits by reason of his disability include orientation to person, place or time, impulse control, capacity for new learning, susceptibility to influence and planning and reasoning skills. Dr Lang says that HHE has demonstrated that he is functionally unable to attend to his own needs. HHE is unable to restrain himself from using alcohol excessively, although he recognises that it would be to his benefit not to do so. Dr Lang says that a range of community supports, including Community Options and the Alcohol and Drug Service feel that HHE is at significant risk of dying or suffering further serious injury, and that he lacks the capacity to alter his trajectory. Dr Lang notes that HHE achieved a score of 17 out of 30 on a Montreal Cognitive Assessment in October 2018, indicating moderate to severe cognitive impairment. He considers that HHE would not have improved since that time. Following an extensive medical rehabilitation admission in 2014 HHE demonstrated a range of neuropsychological impairments which, clinically, appear to have worsened since that time. The admission in 2014 was in the context of a severe intracranial haemorrhage following a fall associated with alcohol use. Dr Lang considers that HHE has a reasonable appreciation of the nature and extent of his property but is unable to effectively plan ahead financially or resist impulses to spend money on, for example, alcohol, to the detriment of other expenditures. He is able to perform daily financial requirement such as operating a bank account, paying accounts and budgeting with some assistance but lacks the capacity to make major financial and legal decisions. He is unable to make reasonable decisions about where he should live as he has the impression that he is safe in his current living circumstances despite the concerns of serious risk identified by support agencies. He has a rudimentary understanding of the nature and effect of medical treatment but has demonstrated that he is unable to effectively follow through on treatment for ischaemic heart disease and painful and disfiguring psoriasis. He would not have the capacity to determine support services that he may access under the NDIS. He is able to make reasonable decisions about more general matters such as relationships, visits or friends or relatives and employment. Dr Lang considers that HHE is at significant risk of dying or suffering from serious injury if a guardian is not appointed notwithstanding attempts to provide him with supports.
The Board was provided with an Alcohol and Drug Services File Review as at 24 May 2019. The File Review was apparently prepared in contemplation of the Application for Guardianship and supports the Application. It notes a referral from HHE’s GP in April 2019 which reported daily alcohol use and alcoholic hepatitis. HHE reported to the Service that he had been drinking two litres of wine daily for the past twenty to thirty years and that he commenced consumption on waking. He has limited family support and support from neighbours. He experiences multiple medical issues including complex withdrawal seizures, withdrawal hallucinations and falls while intoxicated. He has an acquired brain injury as a result of a fall when intoxicated and experiences suicidality when intoxicated. He has had recent presentations to the Department of Emergency Medicine due to alcohol use. When HHE was contacted by the service following the GP referral he was intoxicated. HHE was allocated to a clinician for assessment as an urgent priority but did not respond to phone contact. Arrangements were made for urgent admission to the withdrawal unit and then discharge to a residential bed at the facility, but HHE, having originally been agreeable to the plan, withdrew that agreement. The File Review includes a recommendation that HHE would benefit from an inpatient withdrawal unit admission with discharge to a long-term residential rehabilitation program. It recommends a full cognitive functioning assessment to identify how best to support HHE in respect to treatment.
At the hearing Ms Lithgow told the Board that HHE lived independently in a facility. Mr Semmler confirmed that his accommodation was secure. Ms Lithgow confirmed the information in the Application. She said that there was a need for decisions to be made in respect to the provision of services to HHE and in respect to medical treatment. HHE would discharge himself from inpatient care against advice and not attend appointments. Mr Semmler told the Board that there was a need for authority to access HHE’s home in connection with the provision of services and medical appointments. Mr Semmler would go to HHE’s home to take him to pre-arranged appointments and HHE would refuse to answer the door or answer his phone.
Ms Lithgow told the Board that the requirement for a guardian would continue indefinitely, which was consistent with Dr Lang’s view of HHE’s prognosis.
HHE’s son told the Board that he supported the making of an Order. Mr Semmler advised that HHE’s daughter and sister also supported the making of an Order.
HHE was very focussed on the effects of his psoriasis. It was difficult to move his focus from his dermatological problem to the issue of whether a guardian should be appointed. He expressed acquiescence, but without apparent understanding of the issues. He was not responsive to questions and his speech was tangential and disorganised. In response to questions about his wishes in respect to having someone make decisions on his behalf and the making of an Order he did not express an opinion, but gave non sequitur replies, for example referring to having seen a dermatologist and not driving because he was concerned that he might kill someone. He said that he did not know what was being talked about at the hearing. He told the Board to do whatever it wanted, but without any apparent insight or understanding of what the hearing was about.

Does HHE have a Disability

It is clear from the evidence provided to the Board that HHE has a disability in the nature of an acquired brain injury resulting from falls and alcohol use disorder. His condition is deteriorating and likely to worsen. He has a moderate to severe cognitive impairment as a result of the condition.

Is HHE, by reason of his disability, unable to make reasonable judgements in respect of all or any matters regarding his or her person or circumstances

HHE’s disability effects his orientation, planning and reasoning skills and impulse control such that he is unable to make reasonable judgements in respect to alcohol use, access to services and the medical treatment of chronic and acute medical conditions.

Is there a need for a guardian

HHE is at serious risk of worsening health or death associated with his alcohol abuse. He has other significant medical conditions, including psoriasis, in respect of which he has demonstrated an inability to engage with treatment. He has avoided engagement with case management and service providers. Dr Lang considers that he is unable to determine support services that he might access. In the circumstances there is clearly a need for a guardian.

HHE’S wishes

HHE was ambivalent in respect to the appointment of a guardian.

Can HHE’S needs be met by a less restrictive alternative

HHE’s health providers have attempted to provide the assistance he needs. This has been unsuccessful due to his inconsistent engagement and refusal from time to time to accept or continue medical necessary treatment.

Is a limited order sufficient to meet HHE’S needs

It is apparent that HHE does not require an unlimited Guardianship Order. Rather the need for an Order relates to the provision of and consent to healthcare and support services and also the consent for access to his residence for the provision of services.

Other matters

At the hearing the potential need for an Administration Order was raised. Although HHE is living independently and managing his finances, and Dr Lang’s report indicates an ability to do so, Mr Semmler told the Board that HHE would withdraw his whole pension and would spend it on alcohol and gambling such that he would have several days in the pension cycle without money and at times may not have obtained sufficient supplies of food.
Section 51(1) of the Act permits the Board to make an Administration Order after hearing an application for an Order appointing a guardian[4]. It may be appropriate in some circumstances to do so, but it is not desirable or appropriate to make an Administration Order in a situation such as HHE’s without an Application for Administration being made. HHE was not provided with notice that an Administration Order would be sought. There was no consideration given to who might be appointed. The Public Trustee was not notified or represented. The papers indicate that HHE has another son and a daughter and a sister who might have an interest in the appointment of an administrator but who had no notice of an application. The Application contained no financial information in respect to HHE’s income, outgoings, assets or liabilities. It would not have been possible for the Board to obtain a proper understanding of HHE’s estate. For example, Mr Semmler told the Board that HHE may be the subject of action by a collection agency but that he does not have access to details of HHE’s creditors. Although it seems unlikely, the Board could not be certain that there was no enduring power of attorney granted by HHE[5]. It is not entirely clear that an Administration Order would be appropriate. Dr Lang’s report indicates problems with HHE’s ability to plan financially and to avoid impulse spending, but also indicates an ability to deal with day to day financial matters with some assistance, and there is no evidence of any major financial decisions being required. In all the circumstances the Board could not have been satisfied as to the requirements of section 51 of the Act, and even if it could HHE would not have been afforded procedural fairness. If an Administration Order is sought an application should be made accordingly.

Conclusion

[4]Ibid, s51.

[5] Ibid, s53.

The Board is satisfied that a Guardianship Order should be made in respect to HHE. The Board is satisfied that the least restrictive option is to limit the Order to specific powers for medical and support services and access for those purposes. There is no current need for decisions in respect to HHE’s accommodation. The Board is satisfied that HHE is a person with a disability who is unable by reason of that disability to make reasonable judgements in respect of his person and circumstances and is in need of a limited guardian. Given HHE’s poor prognosis it is appropriate to make the Order for a period of three years[6].
[6] Ibid, s24.
An Order in respect to HHE was made in the following terms:
a)    That the Public Guardian (TAS) is appointed as the Represented Person’s Guardian.
b)    That the powers and duties of the Guardian are limited to decisions concerning:
i.Consent to access to his residence for the purposes of the provision to him of services and health care;
ii.Consent to any healthcare and/or medical decision that is in the best interests of the Represented Person and to refuse or withdraw consent to any such treatment to any such treatment; and
iii.Providing consent to the provision of support services to the Represented Person.
c)    That the Order remains in effect to the 13^th day of June 2022.

[2019] TASGAB 13

14 June 2019