KSX (Guardianship)
[2018] TASGAB 28
•2 November 2018
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
KSX (Guardianship) [2018] TASGAB 28
STATEMENT OF REASONS
Ms. Lindi Wall (Chair)
Dr. Matthew Fasnacht (Member)
Mr. Grant Kingston (Member)
Date of Hearing: 2 November 2018
Guardianship – accommodation decisions – Section 20 factors disputed – competing medical opinions – MMSE testing – presumption of capacity displaced on the evidence
Guardianship and Administration Act 1995
An application dated 24 August 2018 was made by Ms Alice Fitzpatrick, a social worker at the Royal Hobart Hospital (RHH) for the appointment of a limited guardian to make decisions about where KSX, a 60 year old man, should live following his imminent discharge from hospital and about his health care.
The application was first listed for hearing by the Board on 20 September 2018 but was adjourned to allow time for KSX, who had previously refused to undergo formal cognitive assessment by his treating team at the RHH, to arrange a private assessment for the purpose of the hearing. The hearing of the application then proceeded on 2 November 2018. The hearing was attended by:
·Ms. Alice Fitzpatrick (Applicant)
·KSX
·Mr. Christian Street (legal representative for KSX)
·Ms. Kim Barker (Office of the Public Guardian)
·Dr. Lucy Madelbwe (Rehabilitation Consultant RHH)
·Ms. Tracey Turner (Manager Social Work RHH).
The Board had reference to the following documents:
·Application for Guardianship dated 24 August 2018
·Health Care Professional Report by RHH treating medical practitioner Dr. Madeline Black dated 24 August 2018
·Psychological assessment report by RHH treating psychologist John Murphy dated 28 August 2018
·Letter/report from Dr. Jane Tolman, geriatrician dated 30 September 2018
·Submissions on behalf of KSX by Mr. Street
Background
KSX gave a history of living aboard his yacht on a mooring when it ran aground in a storm on 11 May 2018 and was assisted by police. Later the same day he visited his pharmacy and incidentally sought advice about his foot which was causing discomfort. His toe was black. The pharmacist advised him to attend the hospital.
KSX presented to the RHH on 11 May 2018 with a gangrenous foot which resulted in four surgical procedures culminating in an above right knee amputation on 4 July.
On discharge from hospital KSX intended to return to live aboard his boat on a berth at Kettering Marina. On 15 August 2018 the Rehabilitation Allied Health Team (OT, physiotherapist and social worker) visited the boat to assess whether it could be modified to accommodate his physical requirements and satisfy safety considerations. The assessment was that the yacht is not and could not be so modified to become a viable discharge option. KSX would not accept this and intended to ignore that assessment.
The application was made because KSX was at that time almost ready for discharge but the applicant believed that he suffered from impaired cognition and that he lacked insight into the practical effects of his impaired function and the risks this presented to his wellbeing and safety if he tried to return to his boat.
KSX strongly refuted any suggestion of impaired decision making capacity and strongly opposed the making of any order. He engaged legal counsel to assist him and made private arrangements for assessment and report by geriatrician Dr. Jane Tolman.
The Board was satisfied after the hearing that KSX is a person with a disability and is unable because of his disability to make reasonable judgments in respect of his personal circumstances and is in need of a guardian limited to making decisions about his accommodation. KSX has requested a Statement of Reasons for the Board’s decision to appoint a limited guardian.
Requirements of the Guardianship and Administration Act 1995
When the Board assesses an application for the appointment of a guardian it needs to be satisfied of the matters in section 20 of the Guardianship and Administration Act 1995 (‘the Act’). They are, that the proposed represented person:
(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 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 KSX a person with a disability?
KSX clearly had a physical disability. He was confined to a wheelchair and was unable to walk or navigate stairs. This was not disputed. The question of whether he also suffered from a cognitive impairment was strongly disputed.
Dr. Black, medical practitioner from the treating team, provided a health care professional report (HCPR) which diagnosed KSX with ‘cognitive impairments presumed secondary to cerebral small vessel ischaemia in the setting of poorly controlled diabetes, hypertension and hypercholersterolaemia’. Dr Black was of the view that his cognitive state was unlikely to improve and may demonstrate slow decline.
KSX disputed these opinions and denied he had a cognitive disability. He presented a report by geriatrician Dr. Jane Tolman who did not attend the hearing. She stated inter alia that he performed well on all tests he undertook including 30/30 on MMSE, perfect clock face and no dyspraxia. She saw no evidence of cognitive impairments in her two hour discussion with him. She did not address the likely clinical association between peripheral ischaemia and cerebral ischaemia, or the relationship between the latter and cognitive impairment.
Dr. Madelbwe gave evidence at the hearing. Dr Tolman’s opinion did not change her view that the presumption of cerebral ischaemia in a setting of peripheral vascular disease and poorly controlled diabetes was justified and that cognitive impairment is a reasonable assumption secondary to small vessel ischaemia. She did not agree that Dr. Tolman’s testing ruled out cognitive impairment. She said that MMSE testing is a screen specifically only for dementia of the Alzheimer’s type, it is not diagnostic, and is not sufficient to exclude cognitive impairment. Dr. Tolman did not test for impulsivity, executive functioning, problem solving and matters of insight which may be caused by damage to the brain. Dr. Madelbwe said that this would be assessed in more depth through full neuropsychological testing which the RHH had intended and which KSX had declined. She noted that CT imaging of the brain would not be of assistance in diagnosis.
KSX relied, together with Dr. Tolman’s report, upon his written submissions challenging the medical evidence of the RHH in which he argued:
i.that a ‘presumption’ of impairment secondary to small vessel cerebral ischaemia is wrong; it was not discussed with him; cognitive assessment was carried out without his knowledge and without specific testing; and the erroneous opinion was formed during a period when he freely admits his state of mind may have seemed abnormal as a result of a number of factors including medication and shock at the loss of a limb. Dr. Tolman’s evidence that he has no cognitive impairment should be preferred because she conducted recognised and standardised cognitive testing.
ii.that RHH staff abused the process of the Board by using value judgments rather than evidence to assert that KSX was cognitively impaired in order to protect themselves from legal liability. In support of this accusation he described an explicit statement of social work staff which supported the inference in this case that the application for an appointment of a guardian was being used as a ‘risk management strategy’ in case KSX suffered harm after discharge.
The Board preferred the evidence provided by the applicant and the treating team to that of Dr. Tolman. The evidence of Dr. Madelbwe regarding the limitations of dementia screening tests in diagnosing impairments to executive functioning was accepted. The diagnosis of peripheral vascular disease, the clinical observations of the treating team over time, the explanation as why it was reasonable to draw from these the conclusion of cognitive impairment were persuasive. There was no evidence to support the allegation that the application by the RHH was made for any improper motive
The Board found, for all the above reasons, that KSX suffers from a disability; namely a cognitive impairment secondary to vascular ischaemia and presumed ischaemia of the brain. KSX’s poor decision making, and in particular his decision to live on his boat on discharge informed this diagnosis.
Is KSX incapable of making reasonable decisions by reason of this disability?
There is always a presumption of capacity. A person with decision making capacity is free to make bad decisions even if it causes them harm. Conversely, a person with a cognitive disability may well be able still to make reasonable decisions. The applicant’s HCPR and other medical evidence supported the view that as a result of his cognitive impairment KSX was not capable of making reasonable decisions and that this was demonstrated by the decisions he was making, and in particular his decision to live on his boat.
In the HCPR Dr. Black reported that the cerebral damage impaired KSX’s impulse control and planning and reasoning skills and this had a profound impact on his decision making, putting him at risk. She stated that he could not clearly identify the reasons for his admission to hospital and lacked insight as to how his amputation affects his function. He failed to identify and respond to his health needs, including diabetes management, and demonstrated unrealistic expectations of support services available to him on discharge. She envisaged no likely improvement in his cognition.
Psychologist John Murphy carried out assessments on three occasions whilst KSX was in hospital. He concluded that KSX had poor insight into the factors leading to his hospitalisation and the adjustments now required and that he was unable to weigh up the consequences and implications of his actions. Although KSX had refused objective assessment of his cognitive state the psychologist formed the view that the tangential thought and poor decision making processes observed were indicative of cognitive impairment. His clinical opinion was that KSX did not have capacity to make reasonable decisions about his accommodation and health requirements.
As a result of her discussion with him and the history he gave, Dr. Tolman reported no evidence of ‘poor safety awareness’, and formed the opinion that he demonstrated insight into his medical situation and plans for the future with above average problem solving skills although she acknowledged that he had not always made the best decisions. She described his focus on returning to live on his yacht including his willingness to obtain second opinions from herself and an Occupational Therapist with a view to achieving this as demonstrating reasonable decision making capacity.
Dr. Madelbwe gave examples of impulsivity observed by the team: completely focussing on living on his boat whilst refusing to acknowledge any implications of this; attempting to stand when he was unable to do so; purchasing crutches when he had been told not to ambulate. She stood by her observations of disinhibition, rambling responses and tangential thinking and noted that Dr. Tolman had made her observations and formed her conclusions over two hours not five months. She disagreed that Dr. Tolman’s evidence shows that KSX is able to make reasonable judgments about his personal circumstances.
The Board again preferred the evidence provided by the applicant over that contained in Dr. Tolman’s report. Some of the material in that report was irrelevant, some outside her area of expertise (eg psychiatric and OT opinion) and many of her comments did not seem to support her conclusions of ‘good impulse control’, ‘safety awareness’ or ‘insight’. She had not had the benefit of any OT assessment around the practicality of KSX living on his boat upon which would enable her to adequately judge the reasonableness of his decision to live on it. On the contrary she noted for example:
·‘he has made some poor decisions’
·‘he thinks and talks quickly sometimes without listening carefully’
·‘he is sometimes quick to take a contrary view and sometimes does not listen carefully’
·‘he can be longwinded’ ‘speaks rapidly’ ‘does not always listen to details’
·‘he was pretty good with his glycemic control until 2013…’
·after he came into some money ‘he made the decision to enjoy life to the detriment of his sugar control’
Dr. Tolman observed that it was a week before he asked his pharmacist to take a look at his painful, black, gangrenous toe which had to be immediately amputated. This was not considered by Dr. Tolman to be evidence of poor insight into his wellbeing.
KSX answered questions at the hearing about his decision to live on his boat. The Board found his responses to be rambling and tangential and supported the fact that he was focussing completely on a return to his boat without any realistic consideration of the impediments to this course. For example he said, ‘You could say the loss of a leg would have some impact but it’s still conjecture’ and ‘the OT (a second OT which he had engaged himself) will give me the assessment that I want.’ He had no reasonable answers to questions about toilet facilities living on the boat, believing that he would not use the facilities ashore but merely discharge waste into the marina whether that was legal or not. If he had to leave the berth because of this he would simply move to a mooring, a plan that would bring with it even more serious challenges for a recent amputee in a wheelchair, and which he did not acknowledge.
KSX pointed out that the applicant did not question his decision making capacity with regard to accommodation when he discharged himself to a hotel and were only doing so only because he was determined to live on his boat. This was just a ‘value judgment’ about his decision. However, this complaint was misconceived. Whilst he was making reasonable decisions about where he lived, there was no need to appoint a guardian irrespective of his capacity.
KSX described, as evidence of his sound decision making and insight, steps that he had taken to implement his discharge plan - such as taking legal advice, having a capacity assessment, engaging a private OT to assist with modifications to his boat, purchasing mobility devices and personalised alarm system. However, the Board was not persuaded that the motivation in taking these steps, which were inconsistent with his attitude whilst in hospital, were more likely the consequence of recent advice about actions which would help his case than a considered decision making process. Whether he has the capacity to challenge the application to the Board is not the same question as whether he has capacity to make the accommodation decisions.
The Board was satisfied that as a result of his disability KSX lacked capacity to make reasonable decisions about his accommodation.
Is there a need for a guardian?
The Board was satisfied for all the reasons set out above that KSX is not able to make reasonable decisions about where he lives. His fixation on living aboard his boat is impractical and risky but immutable. A guardian is required to make decisions about KSX’s accommodation which would, of course, take into account KSX’s wish to live on his boat if this can reasonably be achieved.
Conclusion
After hearing an Application for Guardianship in respect of KSX (hereinafter called the ‘Represented Person’), the Board was satisfied that the Represented Person:
is a person with a disability;
is unable by reason of that disability to make reasonable judgments in respect of certain decisions affecting his person or circumstances; and
is in need of a limited 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 where the Represented Person is to live either permanently or temporarily.
That the Order remains in effect to 1st day of May 2019.
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