KX (Review of Guardianship)

FILE:	KX (Review of Guardianship) [2020] TASGAB 3
HEARING DATE(S):	16 January 2020
DATE OF ORDERS:	23 January 2020
DATE OF STATEMENT OF REASONS:	31 January 2020
BOARD:	Ms L Wall, Member Mr J Walker, Member Dr R Wallace, Member
APPLICATION:	Application for Review of Guardianship
CATCHWORDS:	concurrent applications to review guardianship; public versus private Guardian; scope of Guardian’s accommodation power to relocate a person outside Australia; Section 6 principles considered; variation of order.
LEGISLATION CITED:	Guardianship and Administration Act 1995 (Tas), ss 3, 6, 17(2), 20, 31(3)(c).
PUBLICATION RESTRICTION:	The decision has been anonymised for the purpose of publication

Statement of Reasons

Background

On 16 January 2020 the Guardianship and Administration Board (‘the Board’) heard a statutory Application by the Public Guardian for Review of a Guardianship Order for Ms KX. Continuation of the Guardianship order with a variation of the current powers was recommended by the Guardian. Also before the Board was an Application for Review of Guardianship by Mr KD, a friend of Ms KX. Mr KD sought to be appointed as Guardian for Ms KX and additionally, a direction from the Board that Ms KX remain living in Tasmania. The Board heard the two applications together.
The Guardianship Order to be reviewed was made on 12 July 2019. The Public Guardian was appointed for 6 months until 11 January 2020. The Order limited the Guardian’s powers to decisions regarding where Ms KX was to live temporarily or permanently and consenting to the provision of support services. On 7 January 2020 the review of that Order was adjourned for hearing and an interim Order was made which limited the Guardian’s decision making power to accommodation only for the duration of the adjournment.
After reserving its decision until 20 January 2020, the Board determined:
a.that the Public Guardian was to continue as limited Guardian;
b.to vary the Guardianship Order;
c.to dismiss the Application for Guardianship by Mr KD; and
d.on its own motion to provide a statement of reasons for decision.
On 22 January 2020, upon request from the Public Guardian, the Board determined to further vary the Guardianship Order by replacing the power to make decisions about support services. This power had been included in the Order under review and requested by the Guardian in her Application but omitted from the Orders made by the Board. This further variation was made pursuant to section 31(3)(c) of the Guardianship and Administration Act 1995 (‘the Act’).

Hearing

The applications are made about Ms KX, a 66 year old widow who was born in China. She moved to Australia in or about [year], thereafter marrying her Dutch husband with whom she lived until his death in [year of death]. She was hospitalised at the Royal Hobart Hospital (‘RHH’) in April 2019 with a preliminary diagnosis of late onset schizophrenia. Some 3 months later she transferred to the Roy Fagan Centre (‘RFC’) for further assessment and discharge planning. She remained at RFC at the date of the hearing.
The following persons attended the hearing:
a.Ms KX;
b.Ms Kim Barker, the Public Guardian;
c.Ms Nicky Targett, Ms KX’s delegated Guardian;
d.Mr KD, Applicant for Guardianship;
e.Ms Sarah Campbell, Legal Aid Commission representing Ms KX;
f.Mr Sam McCullough, Simmons Wolfhagen representing Mr KD;
g.Ms Jessica Watson, Public Trustee;
h.Ms Emmah Burtt-Stone, Public Trustee;
i.Dr Suling Tan, psychiatric registrar RFC;
j.Dr Chris Perkins, locum Psychiatrist;
k.Ms Rhian Everson, social worker RFC; and
l.Ms ND, Mandarin and Cantonese Interpreter.
In determining the applications the Board had before it the following documents:
a.Application for Review of an Order from the Public Guardian dated 9 December 2019;
b.Application for Review of an Order from Mr KD dated 24 November 2019;
c.the Board’s Orders dated 12 July 2019 and 7 January 2020;
d.letter, in lieu of a Health Care Professional Report (‘HCPR’), to Public Guardian from Dr Tan dated 29 November 2019;
e.statement pursuant to regulation 4(3) of the Guardianship and Administration Regulations 2017 from Mr McCullogh dated 6 January 2020;
f.Office of the Public Guardian (‘OPG’) Report from Ms Nicky Targett dated 9 December 2019;
g.submission by statutory declaration from Mr KD dated 13 January 2020;
h.HCPR from Dr Tan dated 1 November 2019; and
i.The Public Trustee report from Ms Emmah Burtt-Stone dated 6 December 2019.

Requirements of the Act

When the Board determines an Application for Review of a Guardianship Order it needs to be satisfied of the matters in Section 20 of the Act. They are, that the represented person:
a.is a person with a disability;
b.is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating his 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;
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.

Evidence

Mr KD and Ms Campbell expressed concern that communication with Ms KX and medical and psychological assessment of Ms KX were hampered to her detriment by her poor language skills. It was believed that she spoke a mixture of Mandarin, Cantonese and English. At the hearing, the interpreter, Ms Chiu, who spoke English, Mandarin (in which she was accredited) and Cantonese (her mother tongue), clarified with Ms KX that she spoke and understood the two Chinese languages equally well. Ms KX spoke very little clear English at the hearing but agreed with the proposition put by Mr KD that she understood more English than she was able to speak. Mr KD said they had lived together for many months and had been able to communicate perfectly easily.
Dr Tan had conducted psychiatric assessments of Ms KX with the benefit of the same accredited Mandarin speaking interpreter on an almost weekly basis during her 6 month stay at the RFC. In oral evidence Dr Tan said that since her last report, the early provisional diagnosis of late onset schizophrenia had been ruled out by cognitive assessment and an MRI brain scan. The working diagnosis in her report of vascular dementia had been confirmed. Ms KX’s condition had deteriorated slightly while at RFC. She was becoming more agitated with the restriction in her freedom which had been assisted by a more private setting, promotion of more social engagement and day centre activity. Dr Tan expected that the condition would not accelerate but, because it was a degenerative condition, it would continue to deteriorate.
Dr Tan described the effect of this disability on Ms KX’s cognition and her capacity to make reasonable lifestyle decisions. She said that Ms KX is cognitively impaired with a MOCA score of 14/30. She is unable to navigate the process of returning to China. She is unable to communicate effectively with respect to where she lives and makes variable and inconsistent decisions about this. Her thought processes are disorganised with marked tangentially. She is unable to consent to services as she does not accept that she has dementia or is cognitively impaired, believing that she can manage her affairs independently. Ms KX continued to express unsubstantiated persecutory content including that:
a.the government was infiltrating her bank accounts;
b.Mr KD was illegally hacking into her deceased husband’s computer manipulating the value of her shares; and
c.Her TravelSafe documents represent a threat to her passport and visa to return to China.
Ms Campbell’s said that it was Ms KX’s belief, which she reiterated repeatedly at the hearing, that she did not suffer from a disability, was not cognitively impaired and could make her own decisions. Ms Campbell had no instructions to obtain any medical evidence which might contradict that of Dr Tan.
Whilst Mr KD explained that there were factual elements underlying Ms KX’s delusional beliefs, he did not challenge the diagnosis and the consequent cognitive impairment per se. He did, however, say that her consistently expressed accusations of fraud against him were untrue and evidence was presented to suggest otherwise. No other evidence was put to the Board to support Ms KX’s firm belief that she had no disability or cognitive impairment.
Ms KX expressed emphatically, and through Ms Campbell, that she had no need of a Guardian to make any decisions for her. She was alone in this belief. Both applicants, medical staff and social worker present all gave evidence that a Guardian was still needed. Dr Tan gave evidence that because Ms KX refutes her diagnosis, she has no insight into her care needs and is unable to make a reasonable decision about where she should live. Ms KX is unaware of her financial status and thus what she can afford for accommodation options. Because of her psychosis, she erroneously believes that she owns the home that Mr KD purchased from her. She is therefore unable to make a considered decision, or express consistent wishes about where she should, or could, live.
Discharge arrangements were complex because of Ms KX’s varying views about whether she wished to return to China to live with her daughter, or whether she wished to remain in Tasmania. Dr Tan said her wish to remain in Tasmania was linked to the paranoid concerns she expressed for her finances and what had happened to her money. Ms KX variously wanted to purchase a house in [a place in Tasmania], reside with a friend or in a hotel. However, she remained quite independent in personal care with no high care nursing needs and Dr Tan did not believe she was a risk to herself or others.
The Guardian had made only two decisions under the previous Order: that Ms KX reside at RFC and to investigate the option of moving to China. As Person Responsible, Ms Targett had consented to the administration of medication for Ms KX’s psychosis and was of the view that ongoing health care and medical decisions would inevitably be required which may exceed the authority of a Person Responsible.
With respect to accommodation and support services, Ms Targett told the Board that it was difficult to get clarity about Ms KX’s wishes about where she wanted to live. She had expressed three different wishes to Ms Targett and, previously, Mr Shinnick, her previous Guardian, on three different occasions. On August 5 2019 she wanted to be discharged to Mr KD’s home, whilst at the same time saying that she still had suspicions of him defrauding her. On 13 September 2019 she expressed a wish to move to China and to visit Australia. Her most recent wish expressed to Ms Targett was to stay in Tasmania with visits to China. This was consistent with her instructions to Ms Campbell, with Mr KD’s belief about her wishes and with Dr Tan’s most recent understanding.
The Guardian’s discharge planning had made no progress during the 6 month Order with the focus being on the repatriation option. Ms KX several times expressed her great distress and frustration at being detained for so long against her wishes at the RFC.
Mr KD did not disagree that a Guardian was required to make accommodation decisions. The main motivations for his Application were concerns about Ms KX’s repatriation to China without adequate supports and his preclusion from visiting her at RFC.
On the subject of visits, Ms Targett said that there had been issues at RFC about Mr KD’s wish to visit and take Ms KX for outings. He had been prevented from visiting her since November 2019. Dr Tan explained that Dr Lake at RFC had made the decision to exclude Mr KD from visiting in late November 2019 because of an observed increase in Ms KX’s agitated state which coincided with his visits. Dr Tan noted that this increase in agitation also coincided with a period of low staff ratios which may have contributed to her demeanour. Dr Tan had understood from Ms KX that her consistent wish was not to see Mr KD. At the hearing Ms KX told the Board that she had never said that and expressed a clear wish to see him.
Mr KD observed that Ms KX always welcomed his visits and his friendship with her was confirmed by the fact that until 17 November 2019 when he was refused access by staff, he had visited regularly without any concerns expressed by RFC. Ms KX also had continued to phone him most days since then, sometimes for over half an hour. He noted that after he left RFC after visiting her on 17 November 2019, she phoned him without demonstrating any form of distress. He had worked to reconnect her with old Cantonese speaking female friends with who she had ended contact due to her persecutory ideas. Mr KD told the Board that maintaining social contact with himself and other friends was in her best interests. Ms Targett submitted that any restriction or otherwise of visits to Ms KX requires proper accountability for the decision and should be made by a Guardian, not by RFC staff.
Mr KD informed the Board that he had filed his Application because he became aware that the Public Guardian was considering consenting to Ms KX’s repatriation to China to live with her daughter. He had requested the Public Guardian to review any decision that she should return to live permanently in China, arguing that it is outside the power of a Guardian to permanently relocate an Australian citizen to a foreign country, beyond the power and protection of the Guardian and the Board. The Public Guardian confirmed that this request for review of the provisional decision had precipitated her Application for Advice and Direction as to whether it is within the scope of the Board’s Order for the Public Guardian to make a decision that the represented person lives in a foreign country.
Mr KD explained the background to his relationship with Ms KX since he purchased her house. He had allowed her to continue to live there with him when she was effectively homeless. He had helped her with financial matters and with a search for accommodation until her hospitalisation in April 2019. He was now concerned for her welfare if she were to return to China with no supports except possibly her daughter, WY. He had communicated by email with WY and her comments and attitude worried him. WY had said nothing about caring for Ms KX, asking that Mr KD and another friend Renee (who had also communicated with WY) should take care of her; she appeared to expect that Ms KX would provide child minding whilst WY, a single mother, was working long hours. WY wanted Mr KD to assist with transferring Ms KX’s substantial pension to her and she expressed concerns about Ms KX’s mental health. Also of concern to Mr KD was that after Ms KX’s visit to her daughter in March 2019, she commented that the visit had sometimes been difficult, they had some conflict and that WY ‘always wants more and more money’.
Mr KD argued that he understood Ms KX’s needs and wishes best and had made the Application for Guardianship because he would be better placed than the Public Guardian to make the necessary decisions for her about where she should live. He submitted to the Board that he was able to communicate easily with her without the need for an interpreter. He believed her wish was to stay in Tasmania but would not be opposed to her moving to China if proper safeguards were made about her care and accommodation. He was critical of the fact that she had been held at RFC with no investigation at all of suitable local options by way of discharge planning and that she was being confined at RFC indefinitely, a situation he had not expected at the last hearing. He set out the steps he would take to explore accommodation options.
Ms Campbell told the Board that Ms KX had been consistent in telling her that although she wanted to have visits with Mr KD, she did not wish him to be involved with her money or with making decisions about her accommodation or medical matters. She told Ms Campbell that she was not sure that she could trust him. If the Board decided, contrary to her wishes, to appoint a Guardian, Ms KX would choose her daughter WY to be appointed.
When asked how he could take on this role with the mistrust expressed by Ms KX, Mr KD said her attitude changed from minute to minute sometimes, but he was able to manage that by not engaging with it. She would then often apologise. He did not accept that there would be any difficulty in performing the role.

Disability

Section 3 of the Act defines ‘disability’ as meaning: ‘any restriction or lack (resulting from any absence, loss or abnormality of mental, psychological or anatomical structure or function) of ability to perform an activity in a normal manner.’
The evidence, including the results of recent cognitive assessment and MRI brain scan, supports a finding that Ms KX suffers from a disability: namely vascular dementia.

Unable, by reason of the disability, to make reasonable judgments in respect of her person or circumstances

The medical evidence supports a finding that the vascular dementia is associated with cognitive impairment and paranoid/persecutory ideas. This prevents Ms KX from receiving information for decision making or any reality checking. Her thought process is tangential. Consistent, however, is the perseverative nature of allegations of fraud and manipulation of her money by Ms KX which is not supported by any evidence. Dr Tan’s evidence is that she is unable, as a result of her disability, to make reasonable decisions about her person and circumstances; in particular, where she is to live, the supports she needs, and her medical treatment.

Need

The Board determined that there is a need for a limited Guardianship Order to continue. Discharge planning involving suitable accommodation and/or supports needs to be speedily progressed. It is inappropriate for Ms KX to remain in the RFC. It is emphatically against her wishes. Without a Guardian to make those decisions, however, she will not be able to leave RFC. This is not in her best interests.
In addition, the need for medical decisions, including consent to medication, will continue. Further, as Ms KX has expressed inconsistent wishes about visits from Ms KX at RFC, and staff have been making such decisions for her without authority, a Guardian is needed to make those decisions.

Should the Guardian’s power to make decisions about accommodation be limited to accommodation within Australia?

Mr McCulloch argued that it is outside the scope of the accommodation power of the Guardian to make a decision to permanently relocate an Australian citizen to another country. To permit this would be to place a represented person beyond the power and protection of the Guardian and the Board. It was thus not a decision that could or should be made under delegated authority. He submitted that, in the event that Mr KD was not appointed as Guardian, the power to determine where Ms KX lives should be limited to residence within Australia. Alternatively, the Public Guardian should be required to investigate and report to the Board pursuant to section 17(2) of the Act about the feasibility of any decision to repatriate Ms KX, and to then seek direction from the Board if repatriation is recommended.
In response, the Public Guardian submitted that it would be inappropriate and unnecessary for the Board to limit or interfere with complex decision making by the Public Guardian or her delegates, who are professionals. Ms Barker argued that it was reasonable for the Guardian to consider making a decision that a represented person move overseas. To prevent such decision making would be an infringement of human rights by effectively detaining a person in Australia.

The Board determined that the accommodation power should not be limited in the manner proposed by Mr McCulloch. Further, it is unnecessary and pre-emptive to require the Guardian to formally investigate and report to the Board on the question of repatriation insofar as it forms part of her decision making process. The Guardian’s decision to date was limited to investigating a repatriation option because that was initially understood to be Ms KX’s wish. It is thus provisional and, from the evidence, preliminary. Ms Targett advised that she was now working to present Ms KX as soon as possible with concrete options for a discharge destination within Tasmania, in accordance with her most recently expressed wishes and the recommendations of the medical team for supervised care. At this point in time, therefore, the possibility of repatriating Ms KX to China is purely hypothetical. The Board cannot make decisions or directions on hypothetical scenarios.
The Public Guardian has already filed a request for Advice and Direction which could be activated should the question of repatriation eventually become live. The Board may then call for evidence from all relevant parties including the Public Trustee, WY, Mr KD and the treating team and invite legal submissions on the issue of jurisdiction.

Ms KX’s wishes

Her wishes about her lifestyle are variable and inconsistent. She believes that she can manage her own decisions and does not need a Guardian. If a Guardian is appointed, she has consistently expressed that she does not want Mr KD making decisions for her and would prefer her daughter to do this.

Less restrictive alternative?

A limited guardian is necessary. The least restrictive option is to continue the appointment of a Guardian with limited powers.

Who should be appointed as Guardian?

Although the continued appointment of the Public Guardian is not in accordance with the wishes of Ms KX, and is contrary to the submissions of Mr KD, the Board determined that it would be in her best interests for the Public Guardian to continue.
The Board accepted that Mr KD’s concern for Ms KX’s wellbeing was genuine, and his belief that her indefinite stay at RFC was contrary to her best interests well founded. However, in light of her perseverative accusations of wrongdoing towards her by him, paranoid and unsubstantiated though they may be, and because of her express wish that he not be involved in decision making for her, the Board determined that he would not be an appropriate appointment as Guardian. Importantly, he is one of only very few friends she has. Because of the paranoid, persecutory ideas him that she already holds, and the complex and controversial decisions which may need to be made, the appointment of him as Guardian would likely jeopardise what friendship they have. This also would not be in her best interests because she made it clear at the hearing that she wanted this friendship to continue.
Ms KX’s preference for her daughter as decision maker was not considered feasible. WY, who is resident in China, has not engaged with the hearing process and has given no indication that she understands, wishes, or is able to take on the role of Guardian.

Decision

After hearing the Applications for Review of Guardianship the Board Orders:
1. The Guardianship Order for KX made on 20 January 2020 is varied and from this day the Order is the Public Guardian (Tas) continues as limited Guardian of KX with the power to:

i. Decide where KX is to live permanently or temporarily.
ii. Make medical treatment and healthcare decisions for KX
iii. Permit, restrict and/or prohibit visits to or by KX as the Public Guardian determines to be in her best interests.
iv. Determine which services KX should access and provide consent to such as required.

2. This Order remains in effect until 19 July 2020.

THE BOARD FURTHER DIRECTS: the Public Guardian (Tas) foster and facilitate visits by and/or with KD insofar as the Guardian believes this is in the best interests of KX and in accordance with her wishes.

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[2020] TASGAB 3

23 January 2020