KGI (Guardianship and Administration)

[2012] TASGAB 33

GUARDIANSHIP AND ADMINISTRATION BOARD
BURNIE

KGI on the application by the North West Regional Hospital for the appointment of a guardian and administrator

KGI (Guardianship and Administration) [2012] TASGAB 33

REASONS FOR DECISION

Leon Peck (Chair)
Grant Kingston
Abigail Bindoff

Date of hearing: 19^th October 2012

Guardianship and Administration – disability and incapacity – need for a guardian to make decisions about accommodation and health care – person at risk of harm due to medical conditions – unpaid accounts demonstrated need for administrator – eligibility of person’s wife for appointment

Guardianship and Administration Act, 1995 s. 3, 4, 20, 21, 51, 54

Background to the application:

1. KGI is a 70 year old man.  He married in XXXX but separated from wife KI some 5 years ago.  KI now resides in Mildura but returns to Tasmania frequently to provide support for KGI.  KGI has five siblings including three sisters who he has had limited contact with.  His two brothers are deceased.

2. The Board made an Order for Consent to Medical Treatment for KGI on the 25^th March 2009.  The Order lapsed on the 24^th March 2010.

3. On the 21^st August 2012, KGI was admitted to the Medical Ward at the North West Regional Hospital in a state of confusion, secondary to non-compliance to insulin for diabetes management.

4. A request for an Emergency Guardianship and Administration Order was made by Dr John Winter on the 31^st August 2012, however was dismissed on the basis that it was not considered urgent.

5. KGI was living independently prior to his admission to hospital however concerns had been raised by Community Nurses about his safety.  He had previously been admitted to hospital on five occasions, the result of being delusional and an inability to cope with independent living.

6. KGI was transferred to Spencer Clinic (a Mental Health facility within the same hospital) as a Mental Health inpatient on the 4^th September 2012.  There is a Community Care Order in place until 9^th December 2012.

7. In documentation dated the 4^th September 2012 Alicia Whitely, Social Worker, North West Regional Hospital, Burnie applied for an administration and a guardianship order.  Ms Whitely proposed the appointment of the Public Trustee and the Public Guardian.

1. The hearing was conducted at the Burnie Municipal Chamber on the 19^th October, 2012.   In attendance were:

   KGI   -          Proposed Represented Person
              Mr Sasha Wong   -          Legal Aid Commission of Tasmania
              Mr Jim Paterson  -          Advocacy Tasmania
              KI  -          Wife
              Dr Sivasankaran Kishor        -          Registrar, Spencer Clinic
              Mr Adam Micallef                 -          Psychologist, Older Persons Mental Health Unit
              Mr Robert Guff  -          Nurse, Spencer Clinic
              Mr Graham Stagg                 -          Office of Public Trustee
              Ms Kylie Hillier  -          Office of Public Trustee

9. During the introduction the legal requirements and principles by which the Board operate were detailed.  That is, it had to be established that the proposed represented person suffered a disability that prevented him from making reasonable judgements and decisions in relation to the management of his estate (Administration) and to any matters relating to his person or circumstance (Guardianship).  In addition the Board has to be satisfied that there was the need for both an administration order and a guardianship order.

Is KGI a Person with a Disability?

10. In a Health Care Professional Report (HCPR) dated 3^rd August 2012, Dr Sukes Chandron, Medical Consultant, North West Regional Hospital, Burnie diagnosed KGI with:

“ … vascular dementia psychotic symptoms, having poor judgement and insight with no capacity for informed decision/consent.  CT brain showed consistent findings of chronic small vessel Ischemic changes.  Has ongoing fixed paranoid thoughts and delusions i.e. medications cause harm, does not have diabetes thus refusing treatment”.

11. An ACAT assessment was undertaken on the 5^th May 2012.  The outcome being an approval for high level respite and residential care.

12. Dr Sivasankaran Kishor provided further evidence at the hearing.  He confirmed the diagnosis provided by Dr Chandran in his HCPR.  He reported that KGI was cognitively affected, confused and suffered frequent psychotic episodes.  Dr Sivasankatan also detailed the decline in the physical health of KGI.  His diabetes had led to problems with his eyesight, multiple ulcers, arthritis, cardio and renal complications.

13. Adam Micallef reported that KGI had undergone cognitive function testing in 2007 and 2009.  The results were borderline but Mr Micallef concluded that there existed a mild level of cognitive impairment.    More recent tests had not been undertaken as KGI had refused to participate.

14. Dr Kishor also reported that KGI had an MRI scan of his head in 2009 which had shown generalised brain atrophy.  Dr Kishor said that the scan showed shrinkage that he believed would impact on KGI's decision making ability.

15. In an email dated 12^th October 2012, Mr Jim Paterson, Advocacy Tasmania stated that KGI's diagnosis was questioned and an independent clinical assessment would be sought.

16. Mr Wong in his submission to the Board also stated that the proposed represented person's diagnosis was not accepted.  No alternative reports were offered.  Mr Wong was questioned by the Board on whether he was seeking an adjournment in order     to seek further clinical reports.  He advised that he was happy to continue, stating that he would concentrate his submissions on the issue of whether KGI is in need of a substitute decision maker.

17. On the basis of the evidence and submissions presented, the Board concluded that the proposed represented person had a disability, as interpreted in Part 1, Section 3(1) of the Guardianship and Administration Act 1995 (the Act)

Does KGI Lack Capacity to Make Reasonable Judgements?

18. In her application Alicia Whitely referred to KGI's;

·     lack of insight and considered he risked self-harm through misadventure

·     deterioration in cognition and mental health and the effect on his ability to safely manage at home

·     non-compliance with medication

·     failure to acknowledge his chronic condition (diabetes) and the long term implications that this will have on his healthcare

·     failure to acknowledge that he has difficulty in living independently

19. In his Health Care Professional Report Dr Sukesh Chandran considered KGI's condition to be deteriorating with the prognosis poor.

He stated KGI has:

·“Progressive declining mental cognition, insight and judgement.  No capacity for informed consent for medical treatment, nursing home placement, to make financial decisions.  Worsening psychotic delusions and fixed false beliefs”.

·“Psychotic paranoid delusions – refusing medications as believes causing harm, believes he            is reborn”.

·“Poor judgement and no insight for the future need for self-care, on-going medical treatment, poor home situation”

·“High risk of harm through poor self-care, misadventure, acting upon false beliefs”

·“...... he is refusing all forms of medical treatment despite being explained the prognosis and            result of non-compliance to diabetic, psychotic and antibiotic medications – hyperglycemia, worsening diabetic ulcer and sepsis resulting from uncontrolled infection”

·“Worsening hallucinations and delusions – talking and responding to visual hallucinations, able to speak to dead people, believes he owns this hospital.  Speaking loudly to        hallucinations through the night and disturbing other patients.  Grandiose ideas of having lots of money, being able to bring the dead back to life.”

20. The ACAT report dated 15^th May 2012 includes the following comments:

·“Client’s skin integrity requires monitoring as he has severe peripheral neuropathy in his feet and ankles and moderate neuropathy in his fingers.  He has dressings on his left foot which are being attended and monitored by staff”

·“He is a high falls risk”

·“Supervision and assistance are recommended with medication administration”

·“Urinary urgency, frequency and incontinence reported …...”

·“Bowel management programme recommended”

21. KI stated that she had noted deterioration in KGI's level of hygiene and considered his care had therefore been compromised. She expressed doubts over his ability to manage and expressed concern for his safety.  She considered that he required care 24/7.

22. Dr Kishor reinforced the conclusions of Dr Chandran.  He believed KGI to lack the capacity to make reasonable judgements about his health, lifestyle and finances.  He also referred to a woman by the name of “Ka” who KGI believed would move in with and care for him.  Unsuccessful attempts had been made to contact this woman.  All witnesses, except KGI, considered it likely that she does not exist. 

23. The Board subsequently concluded that KGI lacks the capacity to make reasonable judgements in respect of matters relating to his person or circumstances as per Part 4, Section 20(1) of the Act.

24. The Health Care Professional Report was silent in relation to KGI's capacity to manage his property and finances.  The only comment being KGI “hasn't been paying his bills”.  Because of this lack of medical evidence, the Board considered evidence of his history of financial management which is considered below in conjunction with the issue or whether or not KGI is in need of an administrator.

Is KGI in Need of a Guardian?

25. Information and evidence provided to the Board included:

·     the inability of KGI to live at home without continuous care.  The inability of service providers to provide that level of care.

·     the high risk of harm through poor self-care, misadventure and acting upon false beliefs.

·     the failure of KGI to acknowledge his chronic medical condition with the associated refusal to medical treatment and/or medication compliance.

·     the deterioration  in mental cognition and the refusal of medication.

·     the persisting hallucinations to which KGI actively responds.

·     the previous admissions to Spencer Clinic for psychosis, having been brought in on occasions by the police who had found him wandering/confused.

·     the unwillingness of clinicians to discharge KGI from hospital as it was deemed unsafe for him to return to his home.

26. Mr Paterson reported that KGI did not believe that there was a need for a guardian. His wish was to return home where he would not be alone as he would have “K” living with him.  He considered that he would not be at risk and that he had never harmed himself. He considered that he had a good understanding of diabetes and would be willing to take what he considered to be the appropriate medication.

27. Mr Wong argued that KGI had demonstrated the ability to live in the community and with the appropriate support, was capable of returning to his own residence.  Mr Wong also stated that the application of a Community Treatment Order under the Mental Health Act 1996 would be “less impinging” on his clients rights and therefore “should be adopted”.

In response Dr Kishor stated that KGI's medical condition was complex.  The Community Treatment Order was confined to mental health issues and would not enable other clinical issues to be addressed which he argued were as important as the mental health issues.  Dr Kishor also stated that KGI required insulin three times per day.  Even if he were to comply there was not the community based support that could provide that level of treatment.

KI stated that she may be willing to provide full time care however did not know how her husband would react.  This disclosure led the Board to discuss the role of a ‘person responsible’ under section 4 of the Guardianship and Administration Act 1996.  Following that discussion, KI was reluctant to commit herself to adopting the status of responsible person.  Additionally, KI questioned the need for a guardian and believed the application was a “bit over the top”. KI believed her husband to be responsible and that he would be able to manage at home on his own if he had the right support in place.

28. On the basis of the evidence available the Board concluded that KGI is in need of a guardian.

Who Should be Appointed as Guardian?

29. The primary options available to the Board were the appointment of the estranged KI or the Public Guardian.

30. The Board was concerned about KI's ability to objectively assess her husband's needs and subsequently provide the ongoing support that the Board considered would be required.  This concern and the inconsistencies can best be represented by the following comments taken from the transcript. Mrs. Healy stated that Mr. Healy:

“ ….. will need a little bit of support”

“ ….. will need full-time support”

Regarding the provision of 24 hour support KI made the following comments:

“I could do it”

“I would need back up”

“I would need medical support”

“I would be willing to try for a while”

“ ….. fairly heavy going if I were appointed as guardian”

“He might accept me”

“I have a degree of hesitancy”

This inconsistency and a level of ambiguity was of concern to the Board if KI were to assume formal responsibility for the care of her husband.  The Board however does acknowledge that KI's concluding comment was that she           would be willing to relocate from Mildura to care for her husband.

31. The Board however concluded that it would be in KGI's best interests for Guardianship to be undertaken by the Public Guardian.

Is KGI in Need of an Administrator?

32. Alicia Whitely, the Applicant, considered KGI “at high risk of influence in regard to his finances”.  She also disclosed that there were outstanding invoices and, should residential care eventuate, decisions about the family home, nursing home contracts and fees would have to be addressed.

33. KI reported her husband had been living in the matrimonial home prior to his admission to hospital.  She advised that she had been making regular trips back to Tasmania to provide support to her husband.  KI advised that her husband had a “little bit of trouble” with his accounts which she had helped him with and had made sure they were paid.

34. Mr Wong advised that his instructions were to oppose the application.  He stated that KGI has no outstanding accounts and no current issues in relation to a property sale.

35. The Board noted the absence of any evidence that KGI is vulnerable to inappropriate influence by others or the risk of misappropriation.  KGI has no outstanding accounts and decisions in relation to the property will be determined at a later date following the guardian's decision about his future accommodation.  In the absence of that decision the Board concluded that there was no immediate identifiable need for an order.  The Board therefore dismissed the application for an administration order.

CONCLUSION
After hearing an application by North West Regional Hospital for the appointment of a guardian and an administrator in respect of KGI (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 circumstance; and
• is in need of a guardian;

THE BOARD ORDERS
           (i)  where the represented person is to live either permanently or temporarily, and
           (ii)  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.

1. That the Public Guardian be appointed as the represented person's guardian.
2. That the powers and duties of the guardian are limited to decisions concerning:

3. That the order remains in effect to 18 October 2015.

AND FURTHER, the Board being satisfied that there is no need for the appointment of administrator, the application for administration is dismissed.

Leon Peck
CHAIR