KJFI (Guardianship and Administration) - [2012] TASGAB 7

GUARDIANSHIP AND ADMINISTRATION BOARD
BURNIE

KJFI – Application for appointment of a guardian and administrator by DEPARTMENT OF HEALTH AND HUMAN SERVICES

Neutral citation: KJFI (Guardianship and Administration) [2012] TASGAB 7

REASONS FOR DECISION

Colin McKenzie (Chair)
Leon Peck (Board member)
Mary Davies (Board member)

Date of hearing: 4 April 2012

Guardianship – disability – incapacity – need for a guardian – represented person refusing evaluation by Occupational Therapist and psychologist - rehabilitation strategies - least restrictive alternatives – best interests of the represented person – consent of person responsible not sufficient-

Guardianship – proposed represented person at risk of financial and physical abuse – capacity to make reasonable decisions – self neglect – wishes based on delusional content- emergency order inappropriate as routine treatment tool – immediate appointment of limited guardian required

Guardianship - Proposed represented person’s access to parent - preservation of family relationships - powers of guardian

This is an application under sections 19 and 50 of the Guardianship and Administration Act 1995 for appointment of a guardian and an administrator.
The proposed represented person is a 56 year old married woman who usually lives independently in private rental accommodation in the same town as her mother. Her matrimonial home is in Melbourne where she visits her husband from time to time. She is subject to a Community Treatment Order under the Mental Health Act1996.
The application was received on 21 February 2012 and was heard on 5 April 2012 in Burnie.
The application was made by an employee of the Department of Health and Human Services. KJFI was assisted by an advocate from Advocacy Tasmania. The applicant, KJFI’s mother, KJFI’s husband, a psychiatrist and representatives of the Public Trustee and Office of Public Guardian participated in the hearing.
The grounds for the application were that KJFI has chronic schizophrenia which;
a.Leads her to verbally and physically abusive behaviour toward her mother,
b.Exposes her to risk of physical, financial and sexual abuse from members of her community,
c.Impairs her capacity to care for herself,
d.Leads her to resist the department’s plans for assessment and rehabilitation.
KJFI disputed that there was any need for any order because she is able to manage her finances and lifestyle, there has been no recent incident involving risk to her mother, she is not at personal risk from her community because she has friends in the community, she attends mental health services when requested and is compliant with medication. She objects to involuntary admission and denies that she has a mental illness.
The application, supported by a declaration, contained evidence of circumstances relied upon by the applicant who has direct involvement with KJFI. It stated that KJFI appears to run out of money leaving insufficient for food. She gets food from her mother. KJFI’s mother is 86. Her mother finds it difficult to say no to KJFI. KJFI threatens her mother whom she has physically attacked. KJFI is unable to budget and plan. She has insufficient furniture in her flat. KJFI refuses to discuss her circumstances telling the applicant it is none of his business. She refuses offers of voluntary support and psychiatric rehabilitation. The applicant stated that KJFI would benefit from psychiatric long stay in order to assess her living skills and her capacity to learn and care for herself, then to move her into rehabilitation unit involuntarily where she can receive appropriate psychiatric rehabilitation, education and support to develop life skills that would enable her to live as independently as she is able. During the course of the applicant’s evidence KJFI stated she kept appointments, bought food and did her laundry. She did not wish to ask any questions of the applicant by herself or through her advocate.
Evidence was given by Dr J Filipac, a psychiatrist familiar with KJFI since early 2011 and who provided the health care professional report required to be submitted with the application. She expanded on the information contained in her report. She described KJFI’s longstanding psychiatric history from when she was diagnosed with schizophrenia in her early twenties resulting in hospital admission in Melbourne and since 1986, thirty admissions to the Spencer Clinic. KJFI lacks insight into her illness when acute as well as in between periods of acute illness. She was never without symptoms. She had, over time, lost living skills. She had persecutory delusions and symptoms. Her illness contributed to conflict with her mother. Her incapacity lead her to put pressure on her mother without whom she would not manage with domestic matters such as laundry. She continually moved between her home and Melbourne. Her illness impaired her cognitive capacity for planning and reasoning. Recently KJFI requested admission to Spencer Clinic because she did not have enough to eat. Her mother had to access respite and there was concern that her mother’s increasing frailty meant she could not continue to care for KJFI without her own health suffering. In the past KJFI’s mother had provided consent to treatment as a person responsible under the Act but she could not continue in that role. KJFI’s treatment included Depot (antipsychotic) injection. KJFI is aware that her mother provides the required consent. The treatment cannot proceed without substitute consent because KJFI does not believe she is ill. During the course of KJFI’s evidence Dr Filipac said KJFI presented herself as married and not married at various times. She thought KJFI might be uncertain about her marital status. KJFI had participated in a Mental Health Tribunal hearing regarding her circumstances. KJFI’s access to more suitable accommodation was restricted by refusal to consent to evaluation, including neuropsychological testing. Dr Filipac predicted that without the support of her mother KJFI would end up homeless and cease psychiatric care. She perceived KJFI to be at significant risk of exploitation, aggressive behaviour and risk of suicide if unable to cope. She believed a guardian would be in KJFI’s best interests because a guardian could consent to treatment and rehabilitation of the type proposed by the applicant with the goal that KJFI live independently.
KJFI’s mother gave evidence that she had been providing support, including consent to treatment for many years. She moved to Wynyard in 1984 and KJFI followed. KJFI visits her a lot. She said KJFI says she is lonely and hungry and troubled by abusive neighbours who break in and steal her property. She sleeps in blankets without sheets. KJFI came to her house in the previous month very agitated, swearing non-stop and pushing her mother around. KJFI’s mother had two weeks respite in Umina Park during which time KJFI appeared to cope. She does not want to continue to be the person responsible for providing consent because she found it distressing. She supports the application and believed there is a need for a guardian and administrator because her daughter could not cope alone. She believed she would run out of food and money and would refuse some treatment and would refuse rehabilitation which would be of benefit to her. She said KJFI knows she needs medication and is usually compliant.
The applicant stated that KJFI was not compliant until a Community Treatment Order was in place and enforced by police. He proposed an assessment by an Occupational Therapist in KJFI’s home and psychological assessment to measure KJFI’s capacity.
Through her advocate, KJFI responded saying, she regards the actions of the applicant as an invasion of privacy. She buys take away food. She can look after herself. She doesn’t like having the medication, finding it stressful to travel from Wynyard to Burnie for treatment and would prefer to have it at home. She keeps her flat clean and does her own laundry. She pays her bills on time at the Post Office and her rent is deducted direct from her account. She manages her money well and has no debts. She has the right to choose the way she lives and is not doing anything illegal. If she were stuck for money she could call on her husband or St Vincent de Paul. The Mental Health system takes advantage of her by injecting Depot and by inflicting pain. She does not want the Depot. She went to Spencer Clinic because she ran out of food. She was a bit unstable and nerve-wracked. She did not know if she had run out of money at that stage. She was “hard up for a quid”.
The advocate had received an email from KJFI’s son, NI a resident of UK, advising he was unable to attend and making a number of remarks about the proceeding. His email was read out at the hearing. He proposed that KJFI’s husband should be appointed Guardian.
BI, KJFI’s husband gave evidence. He had written to the Board on 27 March 2012 noting that he and KJFI for 30 years have been and remain legally married. He said he had a very close relationship with KJFI when she is in Melbourne three to four times a year for periods of a few days to a couple of weeks at a time. She is capable of looking after herself although it is not “her way” to fill up her larder. She has always taken her medication unless on occasions she forgot or as a result of a “personality thing”. She complains about taking her medication. BI was willing to be the person responsible under the Act and would be able to monitor her situation from Melbourne. He did not know her financial position saying she is cagey about it. He would follow medical advice regarding his wife but not if it entailed loss of her liberty. He has never had a similar responsibility for anyone else. He had not been in contact with the Department of Health and Human Services regarding his wife. He did speak to his wife by phone a number of times a week for five minutes to thirty minutes at a time and he spoke to KJFI’s mother by phone.
Dr Filipac said until the hearing BI had not shown any interest in KJFI’s circumstances while she is in Tasmania.
KJFI’s mother said she spoke to BI about once a year and on the last occasion he said he would look after KJFI in Melbourne but shortly after she went to Melbourne she returned. She declined when questioned by the Board, to state whether she thought BI would be a suitable person responsible.
Ms Hillier appeared as delegate of the Public Guardian. She submitted that the least restrictive option was to obtain consent from a person responsible within the meaning of the Act. She submitted that KJFI was compliant with medication under the Community Treatment Order and engaging with services. She submitted that KJFI could not be forced into rehabilitation or to undertake assessments. She submitted that treatment needs could be met by the Board making an emergency order.
Dr Filipac said KJFI has resisted medication changes and was consenting under the duress of the order. The applicant said KJFI does not give consent for intervention or investigation relating to lifestyle issues.
KJFI maintained that she did not want to be subject to an order appointing a guardian or an administrator and preferred to have consent to treatment covered by BI acting as person responsible.
The Board is satisfied that KJFI has a disability, being chronic schizophrenia, and is by reason of that disability, a person who is unable to make reasonable judgements in respect of matters regarding her personal circumstances relating to her treatment and rehabilitation. The Board accepts the evidence of intermittent failure of compliance with medication and that compliance was the result of duress under statutory order. There was no evidence, other than KJFI’s denial, challenging the diagnosis. The evidence from the applicant and Dr Filipac was supported in material respects by KJFI’s mother and her husband. The Board was impressed by Dr Filipac’s evidence and accepts it. It was unchallenged in any material or relevant respect apart from some matters of detail which did not diminish the weight or effect of her evidence as a whole. BI supported the appointment of a guardian, proposing that he be the appointee.
The Board accepts that KJFI needs a substitute decision maker for consent to treatment, to enable evaluation and decisions relevant to rehabilitation and to make decisions that facilitate a good relationship with KJFI’s mother in so far as it is in KJFI’s interests to do so. KJFI’s mother is the only relative living near her and is the person to whom she first resorts when in need, however her behaviour when she does so is at times potentially destructive to that relationship. The Act recognises the importance of maintaining family relationships. The Board is satisfied that there is a need to provide power to make decisions about access to her mother when it would be damaging to that relationship for KJFI to have access to her mother.
A person responsible would be less restrictive than appointing a guardian but the Board is not satisfied that relying on a person responsible would meet KJFI’s needs because a person responsible does not have sufficient power under the Act to address all the needs identified by the Board. The definition of medical treatment under the Act is confined. A person responsible does not have power to permit an Occupational Therapist to have access to KJFI’s residence or to require her to attend a psychologist for assessment or to make decisions about implementation of any rehabilitation strategies which may include the need to admit KJFI to residential psychiatric long stay program, or to address the circumstances of KJFI’s access to and interactions with her mother in ways which will promote and preserve that relationship.
BI wrote a letter to the Board in which he sought to be appointed KJFI’s guardian. It was established at the hearing that he was actually proposing that it was sufficient that there be a person responsible and he was a suitable person responsible. The Board does not need to decide whether BI is suitable to act as the person responsible because KJFI’s needs are broader than can be met by a person responsible. If those needs diminished so that a person responsible would be sufficient to meet those needs the Board would then have to address the issue of whether in all the circumstances, BI would be a suitable person responsible.
The Board does not accept that an emergency medical consent order should be used as a routine treatment tool. There are numerous disadvantages for the represented person in an emergency process due to notice often being foreshortened or not required (s65(4)(a)), difficulty for the person who will be subject to the order securing representation and witnesses, and orders being implemented immediately on emergency grounds. A Board hearing an emergency application faces difficulties in ensuring the requirements of natural justice are met for an ill person appearing before it on short notice. There is the real potential for a great deal of stress to be placed on the proposed represented person whose medical circumstances have reached the point where doctors can conscientiously say the person is in the midst of a medical emergency, which in cases before the Board often have psychiatric elements. The Board sees no reason to visit that situation on any person where there is reasonable alternative to doing so.
The Board is satisfied it will be in KJFI’s best interests to have a limited guardian appointed now with sufficient power to enable expert evaluation of her current capacity for independence, to identify her rehabilitation needs, and implement recommendations accepted by the guardian. Those assessments may also provide a basis for KJFI or the guardian applying for review of the scope of the guardian’s power if they support KJFI’s case for greater independence. They will also be relevant to assessment of the application for appointment of an administrator.
As KJFI maintains that she can manage her own financial affairs, apparently has no income other than pension and her only significant asset is an interest in the matrimonial home in which her husband resides, the Board determined, there being no submission to the contrary, that it should not proceed to determine the application for appointment of an administrator until the Occupational Therapist and psychological assessment were available.
The Board has considered the appropriate duration of the order and decided to appoint the Public Guardian for 12 months. The Board is not prepared to make a longer appointment at this time because it considers that there is real prospect of progress. Further evidence is likely to be available by that time about the need, if any, for a substitute decision maker.
The Board directs the Registry to arrange review of the appointment of Guardian at 11 months so there is a time to consider it before it expires.
The Board decided to direct the Public Guardian to make such decisions as are necessary to facilitate the occupational therapy and psychological assessment. Obviously KJFI can’t be forced to communicate with assessors but a guardian can make decisions that provide the opportunity for that to occur by securing her attendance at appointments and allowing access to her home. The provision of that report is important in the Board’s view as it will be relevant to the application for appointment of an administrator.
The Guardian will have the power to implement any recommendations from the OT and psychologist reports. Whether they should be implemented and in what manner and form, will be a matter for the guardian to decide after discussions with KJFI and the treating practitioners.

THE BOARD ORDERS

That the application for administration is adjourned for 3 months.
That the Public Guardian be appointed as the represented person’s guardian.
That the powers and duties of the guardian are limited to:
(i)Making 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 including making any decisions necessary to obtain an Occupational Therapy report and a psychological assessment for the purpose of treatment and rehabilitation.
(ii)Making decisions in respect of the implementation or not of any recommendations that arise from the Occupational Therapist’s report and the psychological assessment that may assist with the represented person’s treatment or rehabilitation including any recommendation about her place of residence.
(iii)Making decisions, in so far as it is practical and in the represented person’s interests to do so, which facilitate a good relationship with her mother.
That the parties have liberty to apply.
That the order remains in effect to 4 April 2013.

COLIN MCKENZIE LEON PECK MARY DAVIES

DEPUTY PRESIDENT MEMBER MEMBER
14 June 2012