JD (Guardianship)
[2018] TASGAB 27
•24 October 2018
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
JD (Guardianship) [2018] TASGAB 27
Statement of Reasons
Board: Sandra Taglieri (chair)
Hearing Date: 24 October 2018
Guardianship – existence of disability – whether unable to make reasonable judgements about her person or circumstances – absence of persuasive evidence – alternate explanation for lack of cooperation in decision making about where to live and health care – Guardianship application dismissed
Guardianship and Administration Act 1995
Background
On 24 October 2018 the Guardianship and Administration Board (the Board) heard an application for appointment of a guardian for JD aged 47 years. The application had been made by Ms Alice Fitzpatrick, a Social Worker at the Royal Hobart Hospital where JD was an inpatient at the time of the hearing.
The written application dated 2 October 2018 was accompanied by a number of documents which were relied upon by the applicant. Those documents included the following:
(a)Health Care Practitioner report dated 27 September 2018 from Dr Caroline Davis, Clinical Psychologist;
(b)Health Care Practitioner report dated 27 September 2018 from Dr Carla Francesconi, a Medical Practitioner practising in the specialty area of Rehabilitation Medicine;
(c)Report of Ms Fitzpatrick with more detailed information concerning JD’s reason for hospitalisation and subsequent events;
The papers provided to the Board identified that JD was a citizen of the United Kingdom who had been residing on and off in Australia (and more relevantly Tasmania, shortly before her admission to the Royal Hobart Hospital). The legal status of her residence in Tasmania was not raised as being relevant to the Board’s jurisdiction to determining the application for guardianship. The hearing of the application proceeded on the basis that if JD was a person with a disability for the purpose of section 19 of the Guardianship and Administration Act 1995, the Board had power to determine whether an order should be made.
JD appeared in person at the hearing, accompanied by CN, who had been identified as an interested person, as they had been in a personal relationship prior to JD’s abseiling accident on 22 February 2018.
Ms Fitzpatrick appeared in person with Dr Francesconi and each made representations to the Board. Dr Francesconi elaborated on JD’s medical condition and responded to concerns JD raised about the process and nature of discharge planning for her.
The Public Guardian, Ms Barker attended in person and also participated in the hearing.
Statutory requirements for making guardianship order
Section 20 of the Guardianship and Administration Act 1995 (the Act) provides as follows:
(1)If the Board, after a hearing, is satisfied that the person in respect of whom an application for an order appointing a guardian or an order appointing an administrator is made–
(a) is a person with a disability; and
(b) is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to his or her person or circumstances; and
(c) is in need of a guardian–
the Board may make an order appointing a full or limited guardian in respect of that person and any such order may be subject to such conditions or restrictions as the Board considers necessary.
Before the Board exercises power conferred to it to make a guardianship order, it must be satisfied on the balance of probabilities and by reference to a standard of satisfaction commensurate to the seriousness of allegations and/or consequences of particular findings relevant to the considerations in section 20 of the Act[1].
[1] Briginshaw v Briginshaw (1938) 60 CLR 336 at 343-344
The issue of whether a person has a disability which impairs reasonable decision making is in the Board’s view a very serious matter. How the issue is determined has potential to deprive a person of identity, independence, autonomy and the like.
In relation to the meaning of a “person with a disability”, the Board has applied the principles stated in PY v RJS and Others,[2] which have been followed in this State[3].
[2] [1982] 2 NSWLR 700
[3] Stevenson v State of Tasmania [2008] TASSC [34] – [35]
If the Board is satisfied on the evidence and information it receives of the matters contained in subsections (a) - (c) the Board must then exercise a discretion as to whether an order should be made. The exercise of discretion is directed and informed by subsections (2), (3), (4) and (5) of section 20 of the Act.
Evidence before the Board
The applicant relied upon the evidence in the two Health Care Practitioner (“HCP”) reports referred to above and the oral statements of Dr Francesconi and Ms Fitzpatrick to establish that JD was a person with a disability. The HCPR reports expressed the opinion that JD had suffered a severe traumatic brain injury, however, by Dr Francesconi’s admission there were little signs of deficits in cognitive function. The only identified deficits were said to relate to “planning and reasoning” and “capacity for new learning”.
The evidence relied upon to establish the deficits referred to at [10] was minimal and a neuropsychological assessment which would have assisted in objectively assessing deficits was not provided. The applicant and Dr Francesconi, both referred to JD’s unwillingness to engage or co-operate in discharge planning and a claimed lack of insight to demonstrate the deficits.
JD spoke on her own behalf and did so very clearly and logically. Her statements to the Board were always in context to the subject being discussed and her position was supported by reference to details of discussions and events which had occurred in the lead up to the application.
To the extent that there was a claim of inability to learn new skills, this appeared to be in conflict with partial physical and mental recovery JD had made so far. JD also commented upon her initial expectations of full recovery, but more recent realisation that, this may not eventuate given the length of time since injury.
CN provided statements to the Board which were consistent with JDs. He emphasised that it appeared to him that JD had an expectation of a full recovery and resumption of a personal relationship with him. However, he had only recently informed her that he was unable/unwilling to assume responsibility for her as a partner. Not surprisingly, this position is one that any person, including one with full decision making capacity, would need some time to process and resolve from an emotional and practical perspective.
JD stated that she was a qualified physiotherapist with many years experience in treating disabled persons.[4] It was apparent that she had a particular expectation about the standard of discharge planning which could be reasonably expected. Her evidence was that the hospital’s discharge planning was not consistent with her knowledge and experience or what the hospital had portrayed it would be like. Dr Francesconi, confirmed that a number of JD’s complaints about the process of discharge planning were correct but were due to staffing and funding difficulties.
[4] Which statement was not challenged
There were issues raised by the applicant relating to how treatment, health care and support would be paid for, given the nature of JD’s Visa status and alleged limitations on funding in a mutual recognition agreement between Australia and the United Kingdom concerning treatment and care of residents of both countries. These issues were raised in a general manner and when the Board probed the applicant about the terms of the mutual agreement and why it was alleged JD had shown lack of understanding around this, no information was forthcoming. The applicant had not obtained a copy of the agreement or considered it in detail to determine what was in fact available to fund services.
Evaluation of evidence and determinations
The Board accepted JD’s explanation for her failure to fully engage in discharge planning. Namely, it accepted that the process had been represented to be multi-disciplinary and involving input from all relevant parties at one time, but was not carried out in that way.
The claim that JD lacked insight appeared to be without foundation also. In the Board’s view, based on statements made by JD and CN, expectations about how JD would live her life if permanently physically disabled without a partner, were not consistent with some of the views of her treaters. However, the Board was not satisfied that this of itself demonstrated disability concerning reasonable decision making.
The Board was not satisfied that JD was a person with a disability which prevents reasonable judgments about accommodation and medical treatment. There was no evidence of a neuropsychological nature or otherwise that satisfied the Board that any lack of engagement in discharge planning was because of disability.
It is equally plausible that the perceived lack of engagement in discharge planning is a reflection of a previously very physically active, independent, free spirit type personality, grappling with realisation of change. JD’s comments that people cope differently and may be willing to accept different standards of support services or care, do ring true.
In a case where there is so little evidence of cognitive impairment (as opposed to a physical disability) the Board is not satisfied to the relevant standard,[5] that a guardianship order should be made.
[5] Ibid, 1 above
Persons without disability which impairs reasonable decision making about accommodation, treatment and support services, might make decisions not regarded as “norm” in particular circumstances. Without evidence that decisions contrary to norm expose a person to real risk of harm and are made because of disability which impairs reasonable decision making, the requirements of section 20 of the Act are not satisfied.
Determination and comments
In conclusion, the essential reasons for refusing to make the limited guardianship order sought are that there was insufficient evidence to persuade the Board that JD lacked ability to make reasonable decisions about her accommodation, health care and support services upon discharge from hospital.
If evidence were made available in the future which demonstrated that JD had deficits relating to decision making caused by a disability, a member of the Board may decide that a limited guardian should be appointed.
As JD presents in a manner which demonstrates she understands the issues relating to discharge and has explained her lack of co-operation to date reasonably, there would need to be compelling expert opinion of cognitive deficits to demonstrate the requirements of section 20 are satisfied.
Because of the injuries suffered in the fall and the lack of full recovery to date, JD has huge adjustments to come to terms with concerning accommodation, health care and support services and how they will be paid for. Dr Francesconi identified that JD was medically stable to discharge, once a plan was in place. For that reason, if there is an unexplained failure to engage in discharge planning, a time may come where the evidence will demonstrate that a limited guardianship order should be made.
JD’s Medical Visa status and the reciprocal rights agreement under the United Kingdom’s National Health Scheme and Australia makes this case complex. It would appear to be in JD’s interest to clarify the facts about these issues herself or with assistance from others. It is likely that such information will be relevant to any future application that may be made.
If a further application for guardianship is made and JD intends to oppose an order, it would likely be in her interest to have her own expert medical evidence about disability and need for a guardian. In the absence of medical opinion to rebut that relied upon by an applicant, the Board may be persuaded that JD is a person with a disability.
These comments are made to assist JD, as a litigant who is not legally represented. It is not to be interpreted as legal advice and it would be preferable that she seek legal advice if there is a future application.
As the Board has made comments to inform JD as a person without legal representation, it will do likewise for the applicant. It would have been helpful to the Board in deciding this application, if more definitive evidence was available about the claimed nature of JD’s disability and the nature and scope of funding in the reciprocal agreement between Australia and the United Kingdom.
Conclusion
After hearing an Application for Guardianship in respect of JD (hereinafter called the ‘represented person’), the Board was not satisfied that the represented person is in need of a guardian.
The Board orders that the Application for Guardianship be dismissed.
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