HP – Application for appointment of a guardian and an administrator by MENTAL HEALTH SERVICES

[2013] TASGAB 9

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

HP – Application for appointment of a guardian and an administrator by MENTAL HEALTH SERVICES

REASONS FOR DECISION

HP (Guardianship and Administration) [2013] TASGAB 9

Anita Smith (President)
Gerard Dibley (Member)
Elizabeth Love (Member

Date of hearing: 26 April 2013

Administration – Incapacity – denial of mental illness results in an inability to understand the nature and effect of treatment for that illness – inability to meet debts and apply for appropriate welfare benefits – need for a guardian and administrator

Guardianship and Administration Act 1995 s.20, 51

1. On 8 March 2013 the Guardianship and Administration Board received an application for appointment of a guardian and an administrator for HP from her Mental Health Services case worker.  The report was accompanied by a completed pro forma Health Care Professional Report (HCPR) by Dr. Paech as required by the regulations.  The application asserted that in respect of decisions about medical treatment and decisions about her estate, HP’s best interests would be served by the appointment of substitute decision makers. 

2. In assessing an application for appointment of a guardian and an administrator, the Board must be satisfied that HP has a disability and that disability renders her incapable of making reasonable judgments about her estate and about her person and circumstances. If so satisfied the Board must then consider whether she needs a substitute decision maker and which person or agency would be appropriate to appoint. These tests are set out in sections 20 and 51 of the Guardianship and Administration Act 1995 (the Act).

3. The Board conducted a hearing of the application on 26 April 2013.  In attendance were:

   HP, proposed represented person

   Alice Godfrey, Mental Health Services, applicant
   ST, barrister representing HP
   Dr. Jonathon Paech, Psychiatric Registrar, Mental Health Services
   Dr. Rupak Dasgupta, Psychiatrist, Mental Health Services
   Dr. Rue Nyakunu, Psychiatric Registrar, Mental Health Services
   UE, Accountant, witness for HP
   Anne Perks, Office of the Public Guardian
   Danielle Lansdell, The Public Trustee
   Carole Weaver, The Public Trustee
   IN, observer

4. The Board had the following documents available prior to the hearing:

   Ms. Godfrey’s application dated 7 March 2013

   Dr. Paech’s HCPR dated 8 March 2013
   Property Information Sheet related to property in Hobart
   Report by GAB Investigator, Rowena Holder dated 8 April 2013
   Email from CP dated 26 April 2013

   At the hearing, HP’s counsel also provided the following documents:

   Handwritten list of HP’s debts @ 16 April 2013 and repayment plan
   Aurora account 16 March 2012 – 14 June 2012 and receipt for part payment of that account dated 7 February 2013
   Clarence City Council rates notice issued 2 July 2012 and receipt for part payment dated 7 February 2013
   Centrelink income statement dated 17 April 2013

Is HP a person with a disability? (Sections 20(1)(a) and 51(1)(a)):

1. Dr. Paech’s written report indicated that HP has an acquired brain injury and a psychiatric disability likely to be schizophrenia.  At the hearing Dr. Paech explained that the issue of HP’s possible acquired brain injury has been the subject of some investigation and uncertainty, but all three practitioners at the hearing agreed that schizophrenia was the primary diagnosis. 

2. HP disputed that diagnosis attributing some of the behaviours or attitudes from which the diagnosis had been made to the grief from the loss of her father.  She also related some traumatic experiences related to relationship breakdown, a failed business and litigation which she believed contributed to her anxiety.  She did not produce any medical evidence or reports to that effect. 

3. Dr. Paech, supported by the other practitioners at the hearing, gave an historical and current account for the basis of his diagnosis and noted that HP’s admissions for treatment of psychotic symptoms commenced in 2007, but her father died in 2011.

4. The Board was satisfied on the basis of the evidence of the medical practitioners that HP is a person with a disability.  The Board did not accept that they were confusing symptoms of a normal grieving pattern with the symptoms of schizophrenia.  However, the Board noted HP’s significant history of trauma and grief.  To that extent the Board did not reject HP’s explanation that her behaviours and situation were, at least in part, attributable to grief and trauma, but this did not, from the Board’s perspective, negate the existence of a disability as defined in the Act and described by Dr. Paech and others. 

Is HP unable by reason of her disability of making reasonable judgments about her person and circumstances? (Sections 20(1)(b)):

1. The application for appointment of a guardian was limited to two issues: HP’s ability to make decisions about medical treatment and her ability to make decisions about the receipt of support services.  Therefore the Board examined the question of her capacity in that context.

2. Dr. Paech’s written report stated that HP is not ‘effectively’ able to understand the nature and effect of medical treatment and that such understanding is likely influenced by psychosis.  He noted that despite significant time, explanation and attempts by the treatment team to modify medication to her wishes, HP does not take medication voluntarily.  At the hearing he noted that HP has a pattern of compliance with medication shortly after discharge from hospital, but that such compliance inevitably drops off after a period and she continues unmedicated ultimately leading to a psychotic episode and readmission to hospital. He also noted that HP raises a number of concerns about the effects of the medication upon, for instance, her ability to find employment while she had not demonstrated any attempts to find employment. He implied that HP uses a variety of excuses to avoid or limit the taking of medication. 

3. Dr. Dasgupta, at the hearing, explained that the main reason that HP does not take medications is that she does not believe that she has a psychotic illness. 

4. HP stated at the hearing that she is willing to have oral medication, but she acknowledged that the main motivating factor is to avoid being injected.  In other words, she has not given free and voluntary consent to treatment, but accepts it to avoid noxious consequences under mental health legislation. 

5. Dr. Paech gave evidence that HP’ refusal to accept service providers to her home was based on paranoid thoughts and went beyond the usual measures that a person would take to protect their privacy and the quiet enjoyment of their home.

6. Taking into account the above medical evidence, HP’s explanations of her decision making and the submissions made by counsel on her behalf, the Board was satisfied that HP is incapable of making reasonable judgments about her person and circumstances to the extent alleged in the application. Specifically, HP is incapable of judging the positive effects of antipsychotic medication in preventing psychotic episodes and admissions to hospital because she does not accept that she has a psychotic illness. 

Is HP unable by reason of her disability of making reasonable judgments about her estate or part of her estate? (Sections 20(1)(b)):

1. Dr. Paech’s report and the applicant indicated that not much was known by the treating team of HP’ financial situation except that she had some significant debts and was unable to manage the repayment of those debts.  She had also refused to apply for the Disability Support Pension, but remained on Newstart, which reduces her capacity to pay off debts.  A very large debt to the energy company, which she is unable to pay, had led to some unusual behaviours such as using tea light candles for cooking, heating water and for washing etc. in place of electricity.

2. UE, HP’ accountant and friend, spoke of HP’ private nature and her reluctance to seek outside assistance for financial matters.  He indicated that her reactions to her debt situation were borne of her limited means and habitual pride, not a result of her disability. He noted that the company that HP and her husband had run, Trumpnet International, had high turnover and HP had been responsible for managing large sums of money until that business collapsed because of large sums owed by debtors to the company.  He urged the Board to consider her behaviours in light of that history. 

3. Dr. Paech said that HP’ historical financial competence was not in dispute, but that there had been a decline in her functioning since her role as a business woman and she would no longer have that level of capacity. 

4. Of interest to the Board was the Centrelink Income Statement dated 17 April 2013 which HP’ counsel handed to the Board.  The statement indicated that HP in in receipt of a Newstart allowance and other minor components totaling $505.40 per fortnight.  The statement also indicated a “Financial Investment Income” of $24,047.20 annually and an asset described as “Cash/Investments/Savings” to the value of $618,205.00.   

5. UE confirmed that neither the income nor the investment noted in the Centrelink Income Statement exist in any real sense.  He stated that the only explanation for these entries on the Centrelink database was that they represented the funds owed by P and HP’ now defunct company to HP and existed only as “book figures”.  The asset represents HP’ share of monies owed to the company by US debtors.  He also stated that there is “no chance” of the US debtors ever paying that liability.  HP’ evidence was that the company went into receivership in 2007, meaning that these debts had been outstanding for at least six years.    

6. UE’s explanation for the retention of these figures for Centrelink purposes was that HP did not want to dissolve the company or write the debts off because she hoped that she might one day recover the funds.   Due to this she has never signed the requisite declaration to Centrelink to disclaim the funds.  The Board gained the impression that there are no active proceedings which would result in the payment of debts.  UE agreed that this hope is irrational, but noted that there had been a significant breach of trust by the US debtors and he implied that HP’ hope was understandable. 

7. HP documents revealed the following:

(a)The Clarence City Council rates for the period commencing 2 July 2012 were $3,666.65. The rates notice included a payment schedule concluding 3 April 2013. One receipt was provided which showed a payment $26.65 on 7 February 2013.  Including this payment, HP’ notes of payments to 25 May 2013 were a little unclear but it appears a total of $134.65 or possibly $210.30 has been paid towards rates.  The outstanding rates for the period are, at best, $3456.35.  Presumably another notice will soon issue for the 2013-2014 year for a similar amount.

(b)The Aurora Energy statement for the autumn quarter of 2012 shows a liability of $6,680.88.  One receipt was attached for $20 paid on 7 February 2013.  The opening balance for the statement showed a liability of $5127.57 with payments in that quarter of $70 but interest and late payment fees totaling $133.36.  Electricity fees for the autumn quarter were $1489.95.  No later accounts or receipts were provided. 

(c)HP’ handwritten figures showed the following:

Debts as @ 16 April 2013

Telecommunications

$1,040

Water

$1,250

CC Council (have written a letter re moratorium)

$5,475.00

($1931.35 crossed out)

Aurora

$9,113.45

Dentist

$1,540.00

Trucks

$465.00

$16, 883.45 (sic)

By Nov

Telecommunications

575

Water

785

CC Council

3010

Aurora

8648.45

Dentist

1075

14,093.45

1. The Board did not consider that these figures conveyed any appreciation of the need to manage these debts or any realistic strategy to pay them back.  For instance the Aurora debt will continue to attract interest and there will be a new rates notice.  The initial total is deficient by $2000 and there no indication of how the $4000 in anticipated repayments will be met.

2. While the application lacked sufficient detail as to HP’ financial situation and her capacity to make reasonable judgments about her estate, the documents handed to the Board by counsel for HP and the evidence given by UE clearly demonstrated that HP has an estate mired in cumulative debt but is incapable of making reasonable decisions about that debt.  Further, although she could secure a more appropriate source of income (the Disability Support Pension) with which to possibly service those debts, she will not take the necessary steps to claim that income because of an irrational hope that some longstanding debtors in the US will one day pay their dues to her defunct company.  It is also possible that because she does not acknowledge the diagnosed disability she will be incapable of signing the necessary declarations to claim that benefit. 

3. By her own evidence, HP has meantime been going without food, she has been cooking outdoors on an open fire and seeking handouts from the Salvos and her family.  She attributed this to the difficulties in being approved for the Newstart allowance.  HP owns her own home, but there was no discussion of the sale of this home to meet her current debts. 

1. The Board was satisfied on the basis of the evidence outlined in the preceding nine paragraphs that HP disability prevents her from making rational and reasonable decisions about her interactions with Centrelink, her understanding of the likelihood of repayment of 6 year old overseas debts to a defunct company and her ability to make reasonable judgments about her debts and ongoing liabilities. 

Is HP in need of an administrator? (Section 54):

1. As counsel for HP was unable to suggest any less restrictive alternative to administration, the Board was also satisfied that the above evidence with regard to HP’ estate displayed a clear need for an administrator for the purposes of section 51(1)(c) of the Act. The immediate task for the administrator will be to correct records at Centrelink to enable HP to receive the Disability Support Pension. The longer term task will be to negotiate and repay HP’ debts. Most likely the recovery from the current situation will take significant time and the Board considers that a three year term is appropriate in the circumstances.

Is HP in need of a guardian? (Section 21):

1. The Board was satisfied that HP is in need of antipsychotic treatment but that she will refuse that treatment or only acquiesce to that treatment on grounds of coercion.  For that reason, the Board was satisfied that she is in need of a guardian limited to health care decisions.  The Board did not consider that she needed a guardian for the purposes of allowing service providers to her home.

2. If and when the Mental Health Act 2012 commences on 1 January 2014, the guardian’s power will be defunct by operation of that Act.  If it does not commence on that date, limiting the order to 12 months reflects the principles of promoting HP’ freedom of decision and action. 

The eligibility of guardians or administrators: (Sections 21 and 54)):

1. The only nominations for appointment as substitute decision makers were the Public Trustee and the Public Guardian.  The Board is satisfied that both agencies are the appropriate choice in these circumstances. 

CONCLUSION:
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 her estate, and her person and circumstances; and

•is in need of a guardian and an administrator;

THE BOARD ORDERS

1. That The Public Trustee be appointed as the represented person’s administrator.

2. That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.

3. That the administration order remains in effect to 25 April 2016

4. That the Public Guardian be appointed as the represented person’s guardian.

5. That the powers and duties of the guardian are limited to decisions concerning 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.

6. That the guardianship order remains in effect to 25 April 2014.

Anita Smith  Elizabeth Love  Gerard Dibley
PRESIDENT  MEMBER  MEMBER

Date of decision: 19 June 2013