KBU (Review Guardianship)
[2018] TASGAB 25
•28 September 2018
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
KBU (Review Guardianship) [2018] TASGAB 25
STATEMENT OF REASONS
Before: Elizabeth Clippingdale (Chair)
Fred Lester
Stuart Roberts
Statutory review of Guardianship Order - recommendation from Public Guardian limited Guardianship Order continue - accommodation in dispute between parties
Guardianship and Administration Act 1995
Background to the Review of Guardianship Order
On 5 October 2017, the Guardianship and Administration Board (‘the Board’), after hearing an Application for Guardianship, made an Order for Guardianship pursuant to Part 4 of the Guardianship and Administration Act 1995 (‘the Act’) in respect of JT. The Order appointed the Public Guardian as JT’s Guardian and limited the powers and duties of the Guardian to decisions concerning consent to any health care in the best interests of JT and to refuse or withdraw consent to any such treatment. The Guardianship Order was to remain in effect to 4 October 2018.
Application and Hearing of the Review of Guardianship Order
With the expected expiry of the Guardianship Order in paragraph 1 above, the Board gave notice of a hearing to conduct a review of the order pursuant to section 67 of the Act.
The hearing to review the Guardianship Order took place on Friday, 28 September 2018 (‘the Hearing’).
The following persons attended the Hearing:
· JT, the Represented Person;
· Ms Rebecca Irwin, Legal Representative for JT, Legal Aid Commission of Tasmania;
· Mr Duncan Massey, Advocate for JT, Advocacy Tasmania;
· Ms Di Sheppard, Office of the Public Guardian;
· SF, Facility Manager from the Nursing Home Facility; and
· ISR, Clinical Care Co-ordinator from the Nursing Home Facility.
The Board had the following documents before it:
· Application for Review of Order dated 18 July 2018;
· Guardianship Order dated 5 October 2017;
· Health Care Professional Report from Dr Helen Parkes dated 27 June 2018;
· Neuropsychological Report from Dr Emma-Jane McCrum dated 4 April 2018; and
· Report from the Office of the Public Guardian authored by Ms Kylie Hillier dated 27 August 2018
A further two documents were tendered without objection during the Hearing:
· Email from Dr Jonathon Paech dated 27 June 2018 and addressed to ‘LGH Psychiatry Level 1 (THS)’, submitted by Ms Irwin, Solicitor for JT; and
· Letter outlining JT’s wishes, undated, submitted by Mr Massey, Advocate for JT.
As a result of the Hearing the Board was satisfied JT remains a person with a disability and is unable because of her disability to make reasonable judgments in respect of her personal circumstances and is in need of a limited guardian. The full details of the order appear at the end of this Statement of Reasons.
JT’s legal representative has requested a Statement of Reasons in relation to the Board’s decision.
Requirements of the Guardianship and Administration Act 1995
At a review of a Guardianship Order, the Board needs to determine whether the Order should continue, be varied, revoked or be allowed to lapse. The Board needs to consider the principles of section 6 of the Act when reviewing any order and determine whether the requirements in section 20 of the Act are still met. The section 20 matters are that the proposed represented person (JT):
(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 - her person or circumstances; and
(c) is in need of a guardian.
10. The Board must also balance the principles in section 6 of the Act, which are:
(a) the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; and
(b) the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and
(c) the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect.
Is JT a person with a disability?
11. In respect of JT Dr Helen Parkes provided a Health Care Professional Report to the Board dated 27 June 2018. Dr Parkes reported JT has a diagnosis of an intellectual disability and referred to a Neuropsychological Report of Dr Emma-Jane McCrum dated 4 April 2018. Dr Parkes suspects JT’s condition has been a lifelong disability and confirms that the condition is ‘static’.
12. In her Neuropsychological Report, Dr Emma-Jane McCrum states her opinion that JT “…does not have cognitive capacity due to her cognitive impairment, lack of insight into her impairment and impact of these deficits on her personality. Furthermore, her focus on physical functioning is probably due to a lifelong concrete interpretation of her body symptoms exacerbated by her incorrect reasoning from TV shows and TV personalities. A misinterpretation of body symptoms is the core of somatic symptom disorder. … Ascertaining cognitive deterioration in individuals with lowered cognitive functioning from childhood, based on cognitive results alone is difficult…However, it is feasible that ..[JT’s] speed of processing, working memory and executive functioning have deteriorated beyond age expected levels and this could be attributed to Parkinson’s Disease.”
13. As stated in paragraph 6 above, during the Hearing JT’s Legal Representative, submitted a printout of an email from Dr Jonathon Paech to ‘LGH Psychiatry Level 1 (THS)’ sent on 27 June 2018 and signed and dated 27 June 2018 by Dr Paech. Dr Paech states he met with JT, JT’s Case Manager and JT’s Guardian on 30 April 2018 and the purpose was to “..add clarity to both her diagnoses as well as management options.” Dr Paech agreed “..that there was certainly a degree of impact from a Somatisation disorder…”. Dr Paech further stated “…I felt strongly that her decision making capacity could also be impaired both due to a degree of pre-existing impairment (lower baseline function cognitively as per Emma McCrum’s report), and this combined with a highly likely degree of impact from her Parkinson’s disease…”.
14. Dr Paech’s email, Dr McCrum’s report and the Health Care Report from Dr Helen Parkes were unchallenged at the hearing. JT’s Legal Representative stated at the Hearing JT “..agrees she does have a disability, some cognitive impairments and some mental health concerns..”.
15. The Board is satisfied JT is a person with a disability within the meaning of the Act.
Is JT incapable by reason of the disability of making reasonable judgments?
16. In the report of Dr Parkes noted above, it was indicated JT has impairments in capacity for new learning, and planning and reasoning skills, and is susceptible to influence. Dr Parkes reported JT “…seeks medical help, investigations and medications. This opens her to potential harm. If she doesn’t get what she wants she will seek a different doctor or opinion.”
17. Dr Parkes also reported JT cannot make reasonable decisions about where JT is to live and stated JT “…has exhausted the options in the disability sector and now in aged care.”. Dr Parkes reported JT does not understand the nature and effect of medical treatment, and “…pursues medical treatment but it is not a rational action.”
18. In the email of Dr Paech noted above, Dr Paech stated “..I felt it was strongly required that ..[JT’s] general practitioner plays a key role…and this combined with ..[JT’s] guardian was required to make effective and ‘prudent’ decisions on ..[JT’s] healthcare..”.
19. Dr Paech also “..concurred with Dr McCrum’s report which indicated broad deficits in multiple domains which would make it highly likely that..[JT] would have a propensity to struggle with increasingly complex tasks or decisions (and that very well it was likely that this would impact upon even relatively more simple decisions as well).”
20. Towards the end of his email, Dr Paech addressed management of JT’s condition and stated: “Psychologically and socially probably the most sound advice I would give regarding ..[JT’s] case would be to focus on both validating …[JT’s] physical concerns, this whilst also having a sound and more importantly consistent second opinion to both weigh and prioritise the same. This I would see as effectively made possible by way of …[JT’s] guardian and general practitioner, both of which I would see as critical aspects of …[JT’s] management into the future.”
21. As noted above in paragraph 14, the evidence of Dr Paech and Dr Parkes was not challenged at the Hearing. The Board was satisfied JT is incapable of making reasonable judgments about her person and circumstances.
Is JT in need of a guardian?
22. JT is a resident at an aged care facility in Launceston owned by Southern Cross Care (Tas) Inc (‘SSC’). JT’s Legal Representative advised JT does not have any family members who could assist JT with decisions currently made by the Public Guardian.
23. JT’s Legal Representative accepted there was a continued need for a limited Guardian for healthcare decisions but that JT would like to have more input into these decisions. JT agreed with this.
24. JT’s Legal Representative further stated that JT would like to make her own accommodation decisions and that JT believes she has capacity to do this. JT agreed with this.
25. The Public Guardian submitted it would like the current Guardianship Order regarding healthcare decisions to continue.
26. As mentioned in paragraph 6 above, the Board received evidence from JT’s Advocate in the form of a typed submission as to JT’s wishes. These wishes (in essence) expressed a desire to move to a different nursing home in Launceston due to, firstly, ‘personality clashes’ with both management at SSC and her current General Practitioner as to medical decisions and secondly, a range of better-suited activities at the proposed nursing home.
27. SF, Representative from SSC, gave evidence SSC was unaware of some of the issues raised in the submission provided by JT’s Advocate until reading it at the Hearing. SF stated she was concerned with the idea of JT making accommodation decisions on her own without support and without the assistance of a guardian.
28. SF refuted JT’s evidence in relation to the better-suited activities at the other nursing home and stated the same activities were on offer at SSC but JT had declined to participate when invited.
29. SF stated she did not believe a move from SSC was in JT’s best interests in terms of JT’s mental health and re-establishing relationships when JT had now made networks at SSC and would lose these if she changed nursing homes.
30. SF supported the appointment of the Public Guardian as JT’s guardian with current powers extended to include decisions around accommodation.
31. ISR from SSC expressed a concern that when a person changes nursing homes, they are sometimes forced to change General Practitioners (GP) as their current GP may not visit the new nursing home. ISR was concerned this may happen with JT.
32. The Report from the Public Guardian dated 27 August 2018 before the Board contained a paragraph that JT had requested a move to another nursing home two months earlier. The Public Guardian noted “[JT]..has requested that she move from SSC. This would not be in her best interest. Rather than request powers to make a decision as to where [JT].. lives I have spoken to [JT]..about all of the reasons why staying at ..[SSC]..is a good option for her and that she may not be as well understood and supported at another facility. I have explained to [JT].. that I could request that the guardianship order be extended to include the power of where she lives, but would rather [JT].. made that decision. Two months later [JT]… has not raised the issue of moving again.”
33. Ms Sheppard gave evidence to the effect that the Public Guardian supported JT making accommodation decisions but that the decision to change accommodation arrangements at this time may not be ideal and that if an immediate decision was to be made by JT to change nursing homes, it would not be in the best interests of JT given the medical evidence before the Board.
34. It was clear there were differing opinions as to the issue of accommodation.
35. The Board clarified to the parties present at the Hearing the Board’s role was not to decide where JT was to live at the Hearing, but to decide if a Guardian was still needed by JT, and if so, whether or not the Guardian required powers including accommodation decisions.
36. JT’s Legal Representative stated it was the least restrictive option to allow JT to make accommodation decisions on her own and reiterated that JT believed she had the capacity to do this.
37. In essence, JT wants to change nursing homes. The SSC and the Public Guardian had reservations about this occurring given the nature of JT’s disability, the available medical evidence and the management plan advised by Dr Paech.
38. Given the suggestion of a move from her current accommodation, the medical evidence received as to JT’s disability and incapacity to make reasonable judgements, and the difference of opinion between persons present at the Hearing, the Board determined there is a need for powers of the Guardian to include where JT is to live.
Conclusion
39. After hearing an application for a review of a guardianship order in respect of JT :
The Board was satisfied that JT:
· is a person with a disability, and
· is unable by reason of the disability to make reasonable judgements in respect of their person and circumstances; and
· is in need of a guardian.
THE BOARD ORDERS
That the Public Guardian be appointed as JT’s guardian.
That the powers and duties of the guardian are limited to decisions concerning:
i.consent to any health care that is in the best interests of JT and to refuse or to withdraw consent to any such treatment; and
ii.where JT is to live either permanently or temporarily.
That the order remains in effect to 27 September 2021.
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