JDB (Guardianship)
[2009] TASGAB 23
•30 October 2009
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
JDB on the application of the Royal Hobart Hospital
Neutral Citation: JDB (Guardianship) [2009] TASGAB23
REASONS FOR DECISION
Lindi Wall (Chair)
Wendy Beveridge (Board member)
Elizabeth Love (Board member)
Date of Hearing: 30 October 2009
This in an application under Section 19 of the Guardianship and Administration Act 1995, ‘the Act’ for the appointment of a guardian for JDB (the proposed represented person).
The proposed represented person is a 35 year old unmarried disability support pensioner. He suffers from paranoid schizophrenia. He resides with his mother when he is well but for the last four months he has been an inpatient at the Department of Psychological Medicine (DPM) at the Royal Hobart Hospital under a continuing care order.
An application was received from the Royal Hobart Hospital, Social Worker, Jillian Gadd on 26 September 2009 and the application was heard on 30 October 2009. The hearing was attended by the applicant, the proposed represented person, Ms BG (case manager), Dr Warwick Ashley (Psychiatrist at DPM), Mrs NE (the proposed represented person’s mother) Michael Condon (for the Public Guardian) and Valerie Hannon (Investigation and Liaison Officer from GAB [ILO]).
The application states:
“[He] has a lengthy history of mental illness and non compliance with his medication. He lacks insight and understanding into the seriousness of his illness and is likely to be non compliant when discharged (from DPM).”
The application explained that the proposed represented person was in need of a guardian “…. to give authority to medicate this gentleman on an ongoing basis.” Importantly, the application refers to the fact that although the proposed represented person has had numerous lengthy admissions to DPM and is otherwise case managed in the community, this has not succeeded in preventing recurring psychotic episodes when he is not complying with medication. It was said that “this [management] does not address his lack of acknowledgement of his serious mental illness, homicidal ideation, inappropriate behaviour and risk he presents when not complying with prescribed medications.”
In relation to the application, the Board received:
·A Health Care Professional Report (HCPR) dated 22 September 2009 from Doctors Halliday, Ashley and Thompson, psychiatrists at DEM.
·A report from Ms BG, Case Manager, dated 23 October 2009.
·File notes from the Board’s Investigation Officers, Anne Perks dated 16 October 2009 and Valerie Hannon dated 23 October 2009.
The proposed represented person opposed the application. Mr Condon questioned the need for a guardian. In her file note, Anne Perks was of the view that a CTO may suffice as the proposed represented person was currently consenting to medication.
Does the proposed represented person have a disability?
The Board found that he has a disability for the purpose of Sections 3 and 20(1)a of the Act. The HCPR shows that he has paranoid schizophrenia. Dr Ashley confirmed this in his oral evidence. This diagnosis was not disputed although the proposed represented person was equivocal, stating that he did not know exactly what it means.
Does the proposed represented person lack capacity to make reasonable judgments?
According to the HCPR the proposed represented person has a reasonable ability to make reasonable decisions about his medication when he is well but not otherwise. It reports that his impulse control and planning and reasoning skills are impaired when he is psychotic. However, Dr Ashley told the Board that the proposed represented person is only well when he is taking anti psychotic medication as prescribed. Medication deficiencies which have occurred each time treatment orders have lapsed leads to a situation where he becomes unwell to the point that he is potentially dangerous, whereupon, not only can he not make reasonable decisions, but he has had to be hospitalised for treatment in the context of homicidal ideation and generally threatening behaviour, particularly towards his mother. When delusional, he believes that his mother is not his mother and that therefore he can have sexual relations with her. Mrs NE confirmed this behaviour, describing how her son would assert that she was the virgin Mary and not his mother, and how this frightened her. To date he had not been physically violent towards her but she gave examples of ‘mental violence’ towards her.
Ms BG described a cyclical pattern of behaviour wherein the proposed represented person has always demonstrated a failure to recognise the importance of anti-psychotic medication to keep his condition stable whenever he is under no compulsion to take it. When non compliant his mental state has deteriorated- that deterioration being directly related to being inadequately medicated.
In response to questioning, the proposed represented person demonstrated a marked lack of insight either into his illness or as to the effect of non compliance with his medication requirements. He was asked what he would do differently to avoid a major episode such as the recent one which has seen him hospitalised for four months. He responded tangentially, saying, for example, “I thought I was a revolutionary , not a psychotic person” and “I was under a misconception and disillusion.” He went on to say that it happened because his family were poor and he had no father. He denied the threatening behaviours alleged in the application which were confirmed by his mother saying, “I was never charged with assault.” He also denied having ever been non compliant with medication. He gave excuses for quantities of unused oral medication which his case manager found in his room which were unpersuasive.
The Board was satisfied that the proposed represented person, by reason of his disability, lacks the ability to make reasonable judgments about his health care for the purposes of Section 20(1)(b) of the Act.
The proposed represented person’s wishes?
The proposed represented person did not want a guardian although he said he would be “happy to be put on a CTO” (community treatment order).
The need for a guardian
Mr Condon submitted that a guardian was not necessary to make decisions about health care because the proposed represented person currently consents to taking his prescribed medication and there was therefore no immediate decision required. If such a need should arise, he submitted that an emergency order could be utilised. This, he said, would be the least restrictive option.
The Board, however, accepted the following evidence which was undisputed except by the proposed represented person himself:
·Anti-psychotic medication is the one factor that makes the difference between him being well or unwell.
·Since first diagnosis in 2002, the proposed represented person has demonstrated that he is not able to make reasonable decisions regarding the need to take prescribed medication and is non compliant with medication unless compelled to take it pursuant to an order.
·Failure to take medication as required has and will inevitably continue to lead to a pattern or cycle of psychotic episode followed by hospitalisation and stabilization (whilst on a community care order), followed by compliance (whilst on a community treatment order) followed by non compliance once the CTO lapses. The cycle then begins again.
·The less restrictive option of a community treatment order has not provided a satisfactory outcome for him. This type of order is not intended for longterm management of patients. Whilst in force, a CTO is effective, but in itself extremely restrictive. Once it has lapsed, this option has in this case allowed the proposed represented person to repeatedly ‘slip through the net’ of mental health care. He has proved able to manipulate his management to promote this outcome although this has been to his detriment.
·An emergency order would not meet the challenges of this particular case. When not subject to a mental health order governing his medication regime, the proposed represented person withdraws under the radar of Mental Health Services into his domestic surroundings where his mental deterioration remains undetected until too late. His mother is unable to make her son take his medication. It is inappropriate that she be placed in the position of having to decide whether to make an application for an emergency (or any other) order for her son, because when his condition deteriorates she is afraid of him. During the last serious episode her response was to call police as it was already too late for any other intervention. By then the proposed represented person’s condition was so poor that a lengthy period of hospitalisation was the only option.
·Dr Ashley and the DPM psychiatric team currently have the proposed represented person as well as possible on his medication regime following his stay in hospital. The difficulty is that, when he is not subject to an order, he has proved able to present extremely well to psychiatrists and other mental health workers who may not know his history, and he refuses his injections. In these circumstances the criteria for a mental health order are unlikely to be met and Dr Ashley made the point that without lawful consent, he could not “go ahead and assault a patient if they will not take medication which is essential to their wellbeing.”
For these reasons, and in order to overcome the pattern demonstrated in the medical history and on the evidence, and to provide the stability in the long term which is essential to the proposed represented person’s health and wellbeing, the Board concluded that the appointment of a guardian was necessary to make decisions about his health care with the ability to enforce those decisions if resisted. The Board was satisfied that his medical needs cannot be met effectively in any other or less restrictive manner.
Best interests
Ms Gadd’s evidence was that he lives a happy and successful life when on regular antipsychotic medication. His mother confirmed that when having his regular injections he could laugh and joke and participate in domestic life. Dr Ashley advised that the proposed represented person must stay on the medication on a long term basis describing it as ‘like insulin” in terms of how essential it is. He was of the opinion that without proper medication he was ‘potentially dangerous.’
The proposed represented person is welcome to live at home with his mother when he is well. It has proved unrealistic for him to live elsewhere in the community and he likes to live at home. However, unless he is on a stable, monitored, medication regime this is not possible. Mrs NE told the Board that she cannot cope with another episode like the one described four months ago. A further decline in his mental health will therefore place his entire lifestyle at risk. Without a guardian to ensure that he takes the medication he needs to maintain stability in his mental health, he will almost certainly lose his home and family life.
The proposed represented person expressed concern about the side effects of medications. In the past he has used this concern to persuade his doctors to put him on oral medication which cannot be easily monitored and this has in turn lead to his non compliance and decline into psychosis. However, he told the Board that he was quite happy to continue having injections as currently directed under the continuing care order. He did not mention side effects in this context. These somewhat contradictory positions demonstrate two things: firstly that he does not oppose having the injections per se and secondly that he is able to tailor his opinions and decisions about his medication to manipulate the outcome he prefers rather than what the evidence shows is in his best interests.
Given all the above, the Board was satisfied that it was not in his best interests to allow the pattern or cycle described in the evidence to repeat itself and that there was a need for the appointment of a guardian to make decisions about health care over a sufficient time frame to ensure the long term stability of the proposed represented person’s health and welfare. He requires continuous considered decision making about health care which the Board finds he cannot successfully undertake for himself by reason of his disability. An ad hoc response only after a crisis has occurred is not in his best interests. The mental health service cannot respond to his needs in a timely and effective way without a guardian to make appropriate decisions as and when they are required rather than when it is already too late.
In the circumstances the Public Guardian is the appropriate guardian.
CONCLUSION:
The Board was satisfied that the proposed represented person:
·is a person with a disability, and
·is unable by reason of the disability to make reasonable judgments in respect of his person and circumstances, and
·is in need of a 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 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.
That pursuant to section 28(2) the Public Guardian is empowered to authorise any employee, officer or agent of the Crown in the Department of Health and Human Services to take such measures to ensure that the represented person complies with any decision of the guardian, including, but not limited to restraining the represented person in order to administer the medical treatment as consented to by theguardian.
That this order remains in effect until 29 October 2012.
Lindi Wall Elizabeth Love Wendy Beveridge
CHAIRMAN MEMBER MEMBER
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