KT (Guardianship and Administration)
[2009] TASGAB 4
•27 February 2009
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
KT on the application of MENTAL HEALTH SERVICES
Neutral citation: KT (Guardianship and Administration) [2009] TASGAB 4
REASONS FOR DECISION
Anita Smith (President)
Elizabeth Dalgleish (Member)
Elizabeth Love (Member)
Hearing and Order: 27 February 2009
Review of guardianship and application for administration – capacity to make reasonable judgments – elderly woman seeking discharge from psycho-geriatric facility
Guardianship and Administration Act 1995 ss 20, 51, 67
At 89 years of age, KT was showing signs of being unable to cope with the demands of independent and solitary living in her home at in Southern Tasmania. At the same time, she refused offers of assistance from relevant Government agencies. She was admitted to the Roy Fagan Centre by Tasmania Police on 16 December 2008, apparently after a history of frequent calls for their assistance. She was admitted to hospital under an order pursuant to section 26 of the Mental Health Act 1996. KT disliked admission to the Roy Fagan Centre and was pressing to return home. On 9 January 2009, the Board made an order pursuant to section 65 of the Guardianship and Administration Act 1995 (‘the Act’) appointing the Public Guardian limited to making decisions concerning her accommodation and health care and appointing the Public Trustee as her administrator. The applicant sought the appointment of an administrator and a guardian on KT’s behalf.
Does KT have a disability?
In submitting the written application for an emergency order, Dr Ang Giap Kian, a psychiatry registrar, indicated that KT had persecutory delusions and was isolated. Dr Danny Cheah completed the pro forma Health Care Professional Report that was supplied with the application. Both medical practitioners practice at the Roy Fagan Centre. Dr Cheah opined that KT has dementia and a psychiatric disability which he also called ‘persecutory delusions’. KT was represented at the hearing. The presence or absence of a disability did not appear to be a contentious issue.
The Board was satisfied on the basis of Dr Ang Giap Kian and Dr Cheah’s reports that KT has a disability as defined in section 3 of the Act.
Is KT incapable, by reason of a disability, of making reasonable judgments?
The Board assessed evidence of KT’s capacity to make reasonable financial judgments independently of her capacity to make reasonable judgments about her person and circumstances as such judgments require appraisal of different issues and different skills.
According to the report of the Manager of Investigation and Liaisons, Anne Perks, KT had worked in an accountant’s office in Melbourne prior to her retirement and, as a result, is meticulous about paying accounts. The suggestion that she was making unreasonable judgments about her financial affairs came from Dr Cheah’s report where he indicated that KT had installed locks and security in her home, but had not attended to basic repairs such as fixing a leaking roof. This was regarded by him as evidence of her paranoia.
The Board accepted that a preference for installing security over basic structural repairs to her home may be evidence of paranoia, but there was no evidence that she was unable to afford the security or that the level of the security exceeded that which an elderly woman living in a remote place might consider appropriate to make her feel safe. In others words the decision to install security was not demonstrably unreasonable.
A report from the Public Trustee regarding their activities under the emergency appointment indicated that there were no outstanding accounts and that she had healthy savings sufficient for any likely contingencies.
KT spoke to the concerns that her house was in poor repair. She said that she had made attempts to have tradespersons come to her house to repair the roof and undertake other structural maintenance and, although some had agreed in telephone conversations to attend and give a quote, no tradesman had actually responded to her requests. She attributed this to the remoteness of her home and expressed disappointment in the level of service that she had received.
The Board concluded that, even if KT suffers from paranoid delusions, she has demonstrated capacity to make reasonable financial judgments and her financial affairs appear to be in order. Therefore the application for the appointment of an administrator was dismissed.
10. The Board found, however, that her paranoia had a greater effect upon KT’s ability to make reasonable judgments about her person and circumstances. KT’s central concern was to return home, which was not an unreasonable judgment. However, she did not appear to understand that she had been hospitalized out of concern for her health and wellbeing. She also did not appear to understand that it was her behaviour in isolating herself from offers of support that had initiated the hospitalisation. The Board was satisfied that her isolation from support arose from her paranoia and her hospitalisation was directly attributable to that.
11. KT’s niece, ST, who attended the hearing gave evidence that no person had a key to KT’s house (presumably meaning that in an emergency the house was inaccessible) and the only persons she had previously accepted assistance from were her friends. Of KT’s three friends at the hearing, only one had ever been inside KT’s house. ST also said that KT needed a community nurse, assistance with hygiene, transport shopping and home maintenance to enable her to live independently and safely.
12. Michael Condon, who represented the Public Guardian at the hearing, said that since the emergency appointment he had authorised the Aged Care Assessment Team to make an assessment of KT’s capacity for independent living and also an assessment of KT’s home by an occupational therapist.
13. With regard to concerns raised in the application and by witnesses about the fact that KT still drives on a licence that is closely restricted to certain geographical areas, the Board noted that KT is due for her periodical driving test in the near future and, given her strict compliance with restrictions currently in place, it is likely that she will adhere to any further conditions or restrictions without the need for intervention by a guardian.
14. At the hearing, both through her lawyer and by her own evidence, KT indicated that she was prepared to accept services in her home. However such assertions were overwhelmed by KT’s attitude to future support. It is clear to the Board that KT did not really perceive any difficulties in her living arrangements prior to hospitalisation and also that she was so desperate to return home that she would possibly agree to anything. Although the Board did not doubt that she genuinely believed that she would accept the assistance offered upon her return home, the Board acknowledged that her paranoia has a very powerful effect upon her life. As a result many idiosyncratic obstacles could arise that would mean that the initiation of that support and its effective implementation would still have many hurdles to overcome.
Does KT need a guardian?
15. The Board noted KT’s firm desire to return home as evidence of her wishes. We also noted that since hospitalisation she had commenced upon a course of anti-psychotic medications with the consent of the guardian that appeared to have been having a positive effect. Given that she was hospitalised without her consent, there was a short term need for a guardian to authorise the temporary accommodation at the Roy Fagan Centre until the range of assessments initiated by the guardian had been completed and any recommendations implemented.
16. The order of the Board is designed to reflect (i) KT’s wishes to return to her home, (ii) her best interests in ensuring that when she does return home, it is a safe environment bolstered by appropriate external supports, and (iii) the alternative that is least restrictive of her freedom of decision and action in that the order is limited by subject matter and to a very short time frame of 3 months which should be minimal but sufficient to ensure that necessary supports are established.
17. No guardian other than the Public Guardian had been nominated for appointment. The Public Guardian consented to appointment. Accordingly, the Board considered that officer an appropriate appointee.
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:
(i) 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,
(ii) decisions concerning where the represented person is to live whether permanently or temporarily, and
(ii) overseeing the case management by Older Person’s Mental Health Service for the represented person’s return home, including assessment of need for nursing home care, transport and any necessary modification to her property deemed necessary to promote her safety and mobility.
That the order remains in effect until 26 May 2009.
AND FURTHER The Board being satisfied that there is no need for the appointment of an administrator, the application for administration is dismissed.
Anita Smith Elizabeth Love Elizabeth Dalgleish
PRESIDENT MEMBER MEMBER
Reasons Delivered: 27 March 2009
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