HKE (Guardianship)
[2013] TASGAB 28
•11 December 2013
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
HKE – An Application for appointment of a guardian by Mental Health Services
HKE (Guardianship) [2013] TASGAB 28
REASONS FOR DECISION
Anita Smith (President)
Date of hearing: 11 December 2013
Guardianship– need for a guardian – eligibility of person nominated as guardian – nominee not cognisant of the role of a guardian – nominee has possible conflict of interests
Board policy: Detention of people with dementia in secure facilities in State care in Tasmania
Guardianship and Administration Act 1995 s. 20, 21
The Board received an application from the Roy Fagan Centre (a division of Mental Health Services) on 21 November 2013 seeking the appointment of a guardian and an administrator for HKE. The application for appointment of an administrator was withdrawn when it was discovered that HKE’s daughter, HE, has a current financial management order made by the Guardianship Tribunal of New South Wales on 7 November 2012.
HKE had been subject to a guardianship order made by the NSW Tribunal, which was registered in Tasmania pursuant to section 81 of the Guardianship and Administration Act 1995 on 12 July 2013. However that order expired on 6 November 2013. On 6 November 2013 the Board made an emergency guardianship order for 28 days which was extended for a further 28 days on 4 December 2013.
The application for the appointment of a guardian and the two previous emergency orders relate to the fact that HKE was resident at the Roy Fagan Centre which is a secure Mental Health facility. HKE is detained in a limited geographical area for his safety. Entry to and exit from the facility is controlled by Mental Health Services, meaning a resident cannot leave without permission. Liberty can only be lawfully removed by order of a Court or tribunal (for instance remanded or sentenced prisoners, asylum seekers, mental health orders) or with the consent of a duly appointed guardian. Because they believe that HKE lacks capacity to consent to this arrangement, Mental Health Services seeks the appointment of a guardian to ensure that his short-term residence in the Roy Fagan Centre is lawful. For more information about the role of a guardian in a secure facility, see the policy published by the Board: Detention of people with dementia in secure facilities in State care in Tasmania.
Before appointing a guardian, the Board must be satisfied that HKE is a person with a disability, that by reason of the disability he is unable to make reasonable judgments relating to his person and circumstances and that he is in need of a guardian.[1] These issues were explored at a hearing on 11 December 2013 at the Roy Fagan Centre. HKE attended with counsel, Sarah Campbell. Also in attendance were:
Colin Brett – Clinical Nurse Consultant, Roy Fagan Centre – Applicant
ND – former carer (by telephone)
Joanne McGuiness – Office of the Public Guardian
Fiona Whitton – The Public TrusteeLee Perry – GAB Compliance Officer[1] Section 20 Guardianship and Administration Act 1995
Psychiatrist, Dr. Matthew Fasnacht, completed a pro forma Health Care Professional Report in which he diagnosed HKE as having alcohol related dementia and possibly Alzheimer’s type dementia. Dr. Fasnacht had been treating HKE for one month during his admission to the Roy Fagan Centre. Counsel for HKE noted that HKE does not accept the diagnosis, but made no further submissions. No competing medical evidence was available. On the basis of Dr. Fasnacht’s report, the Board is satisfied that HKE is a person with a disability.
The impact of HKE’s disability was also considered in Dr. Fasnacht’s report. He stated that HKE experiences deficits in his orientation to person, place and time, impulse control, capacity for new learning, susceptibility to influence and his planning and reasoning skills. He noted that HKE has quite impaired memory and subconsciously confabulates to provide explanations for his circumstances. Dr. Fasnacht states that HKE does not appreciate the extent of the problems he has in caring for himself (e.g. prompting to shower, help in cutting up his food) and believes that he can resume his work as a car yard manager and car salesman. As a result, Dr. Fasnacht concluded that HKE was unable to make reasonable judgments about where he lives temporarily or permanently.
Dr. Fasnacht also noted that without stable accommodation, HKE is likely to resume drinking alcohol heavily. This has serious consequences as HKE has renal failure and is unable to tolerate the dehydration associated with alcohol consumption. This puts him at significant risk of alcohol related delirium and exacerbation of his hepatic impairment.
An Occupational Therapy report prepared by Rowan Castle from the Royal Hobart Hospital on 27 November 2013 states:
“HKE was noted to have poor insight and very little awareness of the impact on his alcohol use on his cognition and recent poor functioning at home. … HKE saw no barriers in going to live with his daughter in the short term and then returning to NSW. He identified being a heavy drinker in the past and reported his plans to continue drinking light beer if discharged home. …
HKE is more likely to have more difficulty with executive function (insight, judgment) and more complex tasks involving flexibility of thought, multi-tasking and higher level problem solving for which he would require support in the community.
Impression:
HKE would benefit from an environment with appropriate support to prompt initiation of self-care and ensure adequate nutrition, with no access to alcohol. … With adequate support he is likely to be able to perform personal and simple domestic activities of daily living. It is likely that HKE cognition will deteriorate from the results of this assessment if he were to resume drinking alcohol.”
These reports were not seriously challenged at the hearing. It was noted that HKE has shown some improvement since Dr. Fasnacht’s report due to abstinence from alcohol, but that the Occupational Therapy report remains accurate. The Board is satisfied that, by reason of his dementia, HKE lacks the capacity to make reasonable judgments about where he lives temporarily or permanently.
In respect of the question of whether HKE is in need of a guardian, the applicant noted the issue in paragraph 3 above as the main issue for which HKE is in need of a guardian. As is noted from Dr. Fasnacht’s and Mr. Castle’s reports the care team consider that, following discharge from the Roy Fagan Centre, HKE will require some form of supported accommodation. According to the NSW Tribunal decision, he also has diabetes, epilepsy, hypertensive cardiovascular disease and degenerative back disease. History provided to the Board by family members noted that HKE has been hospitalised at least 3 to 4 times in the last four years for periods up to six weeks due to alcoholism and seizures. He has a long history of alcoholism and has attempted to give up drinking 20 to 30 times but has never succeeded.
HKE has nominated that he would live with his daughter (such option is not available) or return to New South Wales to be cared for by ND. ND also considered the latter option to be feasible because HKE has ceased drinking alcohol. The applicant disagreed that this was a suitable option, primarily because of the high level of support and restriction that he considered will be required to ensure that HKE does not resume drinking alcohol. Whereas HKE and ND appeared to consider that willpower will be sufficient to remain abstinent, the care team disagreed.
Therefore HKE is in need of a guardian not only because it is necessary to ensure that his admission to the Roy Fagan Centre in the short term is lawful, but also to decide what form of accommodation will be appropriate following discharge from that facility. The Board is satisfied that such an appointment is in HKE’s best interests and that HKE’s needs cannot be met by other means which are less restrictive of his freedom of decision and action. However the Board considers that the order can be limited to making decisions about HKE’s current and future accommodation options.
HKE’s preference was for ND to be appointed as his guardian. The Board discussed this with ND who consented to such appointment. Ultimately, the Board was not satisfied that ND had a clear understanding of the role of a guardian. She appeared to confuse the role of a guardian with having the ability to control his access to money (even after she had been corrected), which she saw as key to keeping him away from alcohol and staying well. A guardian does not control finances, an administrator or financial manager does. Without an understanding of the role of a guardian, it is unlikely that ND can act in his best interests.
Also, ND may be in a position where her interests conflict with HKE’s interests. The Board noted that the statement of reasons written by the NSW Guardianship Tribunal featured a history of HKE living in ND’s accommodation, but being evicted when he failed to pay her rent due to having spent all of his money on alcohol. Alternatively she had evicted him when his behaviour was unacceptable due to alcohol consumption. In the current hearing, ND proposed that she would resume being his carer and providing accommodation for him. It appears that this has historically been an unstable and erratic accommodation arrangement. She was unable to explain to the Board how she might evaluate the care team’s recommendation that he has stable supported accommodation against the level of support that she could provide for him.
For these reasons, despite HKE’s clearly expressed wish for her appointment, the Board could not be satisfied that ND met the eligibility requirements for appointment as a guardian.
The applicant sought the appointment of the Public Guardian. The Board considered this to be suitable in the circumstances.
CONCLUSION:
After hearing an application by Older Persons Mental Health Service for the appointment of a guardian in respect of HKE (hereinafter called the ‘represented person’)
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 judgements in respect of his person and circumstances, and
•is in need of a limited guardian;
THE BOARD ORDERS
That the Public Guardian be appointed as the represented person’s guardian.
That the powers and duties of the guardian are limited to decisions concerning where the represented person is to live either permanently or temporarily.
That a review of the order be conducted after 12 months.
That the order remains in effect to 10 December 2015.
Anita Smith
PRESIDENT
Statement of reasons requested: 2 January 2014
Statement of reasons delivered: 3 January 2014
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