LKD (Guardianship)
[2020] TASGAB 69
•4 December 2020
CITATION: | LKD (Guardianship) [2020] TASGAB 69 |
HEARING DATE(S): | 4 December 2020 |
DATE OF ORDERS: | 4 December 2020 |
DATE OF STATEMENT OF REASONS: | 12 January 2021 |
BOARD: | Mr R Grueber, Member Ms W Hudson, Member Mr G Dibley, Member |
APPLICATION: | Application for Guardianship |
CATCHWORDS: | Guardianship – need for decisions in respect to residence and services – wishes of represented person – preservation of family relationships |
LEGISLATION CITED: | Guardianship and Administration Act 1995 (Tas), ss3, 6, 20, 28 |
PUBLICATION RESTRICTION: | This decision has been anonymised for the purposes of publication. |
STATEMENT OF REASONS
Application
By an Application filed 21 October 2020 Ms Hui-Yu Yao applied for a guardianship order in respect to Mr LKD. The Application proposed the appointment of the Public Guardian as Mr LKD’s guardian.
Hearing
The Application was heard by the Board on 4 December 2020.
The following people appeared at the hearing:
a)Mr LKD (the proposed represented person);
b)Ms Hui-Yu Yao (the Applicant);
c)Ms Elizabeth Love (Office of the Public Guardian, with Ms Tegan Edwards observing);
d)Dr Blair Adamczewski (consultant geriatrician, Royal Hobart Hospital);
e)Mrs ND (Mr LKD’s wife);
f)Ms PXD (Mr LKD’s daughter);
g)Ms KXD (Mr LKD’s daughter); and
h)Mr David Cocker (Tasmania Legal Aid – legal counsel for Mr LKD).
The Board had before it the following documents:
a)Application for Guardianship and Administration;
b)Health Care Professional Report by Dr Blair Adamczewski, geriatrician, dated 13 October 2020;
c)My Aged Care Assessment support plan;
d)Emergency Guardianship Order made 13 October 2020;
e)Order adjourning application made 12 November 2020; and
f)Report by the Office of the Public Guardian to the Board dated 5 November 2020 in respect to the Emergency Guardianship Order.
Legislation
Under section 20 of the Guardianship and Administration Act 1995 (the Act) the Board may make an order appointing a full or limited guardian in respect of Mr LKD if it is satisfied that:
a)he is a person with a disability; and
b)he is unable by reason of that disability to make reasonable judgements in respect of all or any matters relating to his personal circumstances; and
c)he is need of a guardian.
In determining whether or not an order should be made section 20 requires:
a)that the Board consider whether Mr LKD needs could be met by other means less restrictive of his freedom of decision and action; and
b)that the Board be satisfied that an order would be in Mr LKD’s best interests; and
c)that the Board not appoint a full guardian unless it is satisfied that an order for limited guardianship would be insufficient to meet Mr LKD’s needs, and if a limited order is made the order must be the least restrictive to Mr LKD’s freedom of decision and action as possible in the circumstances.
The Board must also have regard to the general principals in section 6 which add requirements that:
a)the best interests of Mr LKD be promoted; and
b)the wishes of Mr LKD are, if possible, carried into effect.
Preliminary matter
At the outset of the hearing Mr Cocker, counsel for Mr LKD, raised a concern that the Health Care Professional Report by Dr Adamczewski was over four weeks old by the date of the hearing and that Dr Adamczewski’s evidence might contain matters that Mr Cocker had not obtained instructions on. He did not apply to have the hearing adjourned, but indicated that he might make such an application during the course of the hearing. The applicant, Ms Yao, was content to proceed with the hearing. Dr Adamczewski told the Board that if he were completing the Health Care Professional Report on the day of the hearing it would not contain anything significantly different. He said that Mr LKD’s disability was a permanent one. At the time Dr Adamczewski prepared the report Mr LKD was not exhibiting any evidence of delirium, which would have indicated the possibility of fluctuation in domains of cognition and would have been an indication for a further report. Mr LKD had undergone multiple general anaesthesia since the report, but Dr Adamczewski did not consider that that would change the assessment of Mr LKD’s disability. Ultimately, no application to adjourn was made during the hearing.
Evidence
Mr LKD is a 75 year old man who normally lives with his wife, Mrs ND, and their adult son at [a suburb of Hobart]. At the time of the hearing Mr LKD was an inpatient at the Older Persons Unit at the Royal Hobart Hospital.
Ms Yao is a social worker employed by the Tasmanian Health Service. Ms Yao’s evidence, from the Application and oral evidence to the Board, was that Mr LKD was admitted to the Royal Hobart Hospital on 10 June 2020 following a stroke. He was subsequently transferred to the Acute Rehabilitation Unit, known as the Peacock Ward, for rehabilitation. Due to Mr LKD’s high level of care needs and high falls risk the treating team at the Peacock Ward recommended that he enter a residential care facility on discharge from the hospital. Mr LKD was robustly and consistently opposed to moving to an aged care facility. He was discharged home on 21 September 2020 with family and formal supports in place. Unfortunately, later that same day Mr LKD had a fall which resulted in a fractured neck of femur. As a consequence, Mr LKD was readmitted to the Royal Hobart Hospital. Mr LKD’s mobility has subsequently improved with rehabilitation in the Acute Older Persons Unit at the hospital. However, the treating team’s recommended discharge destination remains a residential care facility due to his falls risk and need for twenty four hour supervision. Mr LKD continues his strong desire to return home. Ms Yao says that he is unable to identify his risk of falls and his current care needs. Consequently, an emergency Guardianship Order was obtained on 13 October 2020 appointing the Public Guardian to make medical treatment decisions in respect to Mr LKD. It included section 28 powers to ensure compliance with decisions made by the guardian.
Ms Yao identified Mr LKD as having needs in respect to decisions concerning accommodation, services and health care.
Ms Yao proposed the appointment of the Public Guardian as Mr LKD’s Guardian. She said that Mr LKD was opposed to the making of a guardianship order, but that if an order was to be made he preferred that the guardian be either of his daughters Ms PXD or Ms KXD. Ms Yao spoke to Mr LKD’s daughters and his wife, Mrs ND, to discuss the application and Mr LKD’s preference that a family member be appointed. The view of the family members was that it was preferable that the Public Guardian be appointed as a substitute decision maker. Given Mr LKD strongly held desire to return home and the view of the treating team that it was unsafe for him to do so, it was apparent that there were difficult decisions to be made that could well generate tension and stress between Mr LKD and any substitute decision maker.
Dr Adamczewski is a consultant geriatrician. His report, dated 13 October 2020, notes that he has known Mr LKD for eighteen months and has seen him three times per week while Mr LKD has been an inpatient. He has diagnosed Mr LKD with vascular dementia which manifested after the stroke in June 2020. It has resulted in a moderate disability of slow progression. Dr Adamczewski considers that Mr LKD’s disability affects his capacity to make reasonable judgments in respect to where to live, both permanently and temporarily. He describes Mr LKD as being hard to engage in discussions in respect to accommodation as Mr LKD has been adamant that he will return home. Discussions of alternatives, such as residential care, had resulted in Mr LKD attempting to leave hospital against advice. Dr Adamczewski says that Mr LKD is unable to identify his very high risk of falls and current care needs, including recommendations and concerns by the medical team in respect to discharge. With prompting Mr LKD could only partially identify some risks and did not agree with the assessments.
Dr Adamczewski also considers that Mr LKD’s disability affects his capacity to make reasonable judgments in respect to medical treatment and health care.
He describes Mr LKD’s understanding of his health and medical treatment needs as superficial. Mr LKD struggles to retain and weigh new information. Mr LKD has fixed views regarding his medical care. For example, he has refused medications which were not provided at his preferred times. Mr LKD’s disability also affects his capacity to make reasonable judgments in respect to provision of support services. For example, because Mr LKD does not recognise his care needs, and is fiercely independent, he has refused support in his activities of daily living which has resulted in multiple falls while he has been an inpatient. Mr LKD has poor planning and reasoning skills and cannot make or articulate decisions as to what support services he might need.
In reaching his conclusions, Dr Adamczewski has taken into account investigations including administration of the Montreal Cognitive Assessment of cognitive impairment (MoCA) and radiological imaging of Mr LKD’s brain.
Dr Adamczewski confirmed to the Board in his oral evidence that his views as expressed in the report have not changed. He noted that when Mr LKD was discharged on 21 September 2020 he was assessed as being at a very high risk but that the discharge to his home with support services was considered the least restrictive option at that time. Unfortunately, the very high level of risk identified by the treating team was manifested by Mr LKD’s fall and fracture of his neck of femur within hours of discharge from the hospital. Dr Adamczewski noted that Mr LKD had had multiple anaesthetics since preparation of his report, which may have resulted in decline in Mr LKD’s cognition. Given the nature and cause of Mr LKD’s condition and his reluctance to engage Dr Adamczewski did not see any benefit in repeating cognitive assessment.
In response to questions asked by Mr LKD’s legal counsel, Dr Adamczewski said that Mr LKD’s MoCA results showed multi-domain deficits, which were particularly striking in the memory component. There were some parts of the assessment that could not be completed because of the physical
consequences of Mr LKD’s stroke. He had good orientation and his attention was intact. Dr Adamczewski said that the deficit in Mr LKD’s cognition is not simply a matter of recall. Mr LKD can retain information, but he is unable to reason through that information. Dr Adamczewski was asked whether Mr
LKD’s overwhelming desire to return home overshadowed and obscured Mr LKD’s true underlying ability to make decisions. Dr Adamczewski considered that it was not simply that Mr LKD had a fixed view on the topic of residential care, but that his ability to process information is impaired. Mr LKD’s MRI indicated extensive and confluent effects on Mr LKD’s brain of the type that affect executive functioning. The imaging ties in with clinical findings, such as Mr LKD’s concrete thinking and difficulties with reasoning, leading Dr Adamczewski to conclude that Mr LKD has a global deficit, not simply the appearance of impairment resulting from his emotional preoccupation with returning home rather than moving into residential care. Dr Adamczewski was asked whether, if presented with clear concrete alternatives, Mr LKD could choose between them. Dr Adamczewski expressed a preference for supported decision making and referred to meetings with the family to explore this as a less restrictive option than the appointment of a guardian. However, he did not consider that having an advocate or support person would enable Mr LKD to reason through decisions, such as those surrounding his discharge.
In terms of health care and treatment decisions, Dr Adamczewski said that Mr
Cripps had five operations as a result of his fracture, which was now stabilised.
Management of Mr LKD’s wound has been complex. Mr LKD needed to remain in the hospital in the short term to manage wound care and infection issues. Dr Adamczewski was unable to give a timeframe for recovery to the point of discharge, but he expected it to be a matter of weeks. It is likely that Mr LKD would be discharged in a wheelchair which would reduce his risk of falls, but Dr Adamczewski described Mr LKD’s falls risk as extreme in any event.
Mr LKD’s daughter Ms PXD told the Board that the family understood the need for the appointment of a guardian. In respect to who should be appointed, she initially expressed a willingness, as opposed to a desire, to be appointed, subject to any opinion expressed by her mother, Mrs ND. Mrs ND expressed a preference for the Public Guardian, and on that basis Ms PXD supported the appointment of the Public Guardian. Ms KXD did not express any opinion other than that she was happy for the Board to make a decision. Ms PXD expressed a similar view to Ms KXD. She also said that her desire was that Mr LKD return home following discharge from the hospital.
Mr LKD confirmed to the Board that, on being discharged from hospital, he wanted to return home. When asked what services or supports might enable him to return home Mr LKD only suggestion was an electric wheelchair. Mrs ND was firmly of the view that their home was not suited to an electric wheelchair. Ms KXD expressed a similar view. Mr LKD considered that he would not need any assistance with activities such as showering and dressing, notwithstanding the level of care he was receiving at the hospital. Mr LKD was steadfast in his view that he did not want to move into aged care accommodation and that nothing would change his mind in this regard. Mr LKD confirmed that if anyone were to be appointed to make decisions on his behalf he would prefer it to be either Ms PXD or Ms KXD.
Consideration
Dr Adamczewski’s diagnosis of vascular dementia and his opinion in respect to the effects of that condition constituting a disability within the meaning of section 3 of the Act were not challenged or countered by any other expert opinion and are accepted by the Board. Similarly, his expert opinion in respect to the cognitive deficit caused by Mr LKD’s dementia on his ability to make reasonable judgments in respect to matters relating to his personal circumstances was not countered by other expert opinion and is accepted by the Board.
The focus of Mr Cocker’s submissions related to whether there was a need for a guardian, and if so whether that need could be met by other means less restrictive than an order. The evidence of Ms Yao and Dr Adamczewski established that there is a need for decisions to be made in respect to where Mr LKD is to live following his discharge from hospital. They advanced cogent reasons why Mr LKD requires residential care. Mr Cocker made detailed and persuasive submissions why Mr LKD could be discharged to his home. However, where Mr LKD ultimately resides is not a matter for the Board to decide. Rather, the Board is required to determine whether there is a need for a guardian to be appointed to make that decision. Clearly there are very real risks and challenges that will need to be addressed in connection with Mr LKD’s accommodation needs, and the decision is not so clearly in favour of return home that the least restrictive option is to make no order. The Board is satisfied that Mr LKD’s robustly held view that he should return home is not one which might be characterised as a poor decision by a person with capacity, but rather a consequence of his inability to process, use and weigh information provided to him in respect to the risks and requirements surrounding his accommodation needs.
Ms Yao also identified a need for substitute decision making surrounding the provision of services for Mr LKD. This would be of particular importance if Mr LKD were to return home. It is apparent from Dr Adamczewski’s evidence and Mr LKD’s engagement with the Board that he does not have even a superficial understanding of the support and services that he would need to take care of his activities of daily living. Mr LKD is unable, by reason of his disability, to make decisions in this regard.
Ms Yao also identified a need for decisions in respect to medical treatment. It is apparent from Dr Adamczewski’s evidence that, while Mr LKD will have ongoing needs surrounding wound care in the short term, his more acute needs arising from his fracture have resolved. It appears to the Board that, as a guardian would become Mr LKD’s person responsible authorised to consent to medical treatment[1], and as Mr LKD will likely be discharged either to the care of family members or residential care a specific order in respect to medical treatment is not required.
[1] See Sections 4 and 39 of the Act
The Board notes Mr LKD’s opposition to the appointment of a guardian.
However, there is clearly a need for decision making in respect to where Mr LKD should live permanently or temporarily and the provision of services for him. In respect to accommodation, there is a need for Mr LKD to remain in hospital until his wound care has progressed to a point at which he can safely leave the hospital and there will then be a need for a decision in respect to whether he returns to his home or to some other accommodation. Appointment of a guardian in respect to these matters will be in Mr LKD’s best interests, particularly having regard to management of his fall risks and his requirements of daily living. Although Mr LKD has a supportive family, he is robustly dogmatic in respect to his views and not amenable to persuasion, and there is no less restrictive means of meeting the identified needs.
Who should be appointed?
The applicant proposes appointment of the Public Guardian. Mr LKD wish is that if anyone is to be appointed that it be either of his daughters. The view of
Mr LKD’s family is that the Public Guardian ought to be appointed. In the report on the Emergency Guardianship Order to the Board by Ms Liz Love from the Office of the Public Guardian Ms Love comments that ‘Mr LKD is a very forceful character, and it is quite likely that no family member would be able to make and implement a decision that did not accord with his wishes.’ That observation accords with the evidence detailed above and the Board’s observation of Mr LKD. There is no doubt that decisions taken by a guardian, particularly surrounding where Mr LKD is to live, permanently or temporarily, will likely be fraught. Dissociating Mr LKD’s family from emotionally stressful decisions will assist in preserving Mr LKD’s family relationships. It is appropriate to appoint the Public Guardian.
Length of the order
The Board considers that the least restrictive approach to meeting Mr LKD’s needs will be to make an order for a period of twelve months. That should provide sufficient time for the making of decisions in respect to Mr LKD’s discharge to appropriate living arrangements, for any consequential arrangements or variations, and for him to be settled in his accommodation and for the establishment of services.
Orders:
The Public Guardian is appointed as the limited guardian of Mr LKD with the power to:
i. Decide where Mr LKD is to live permanently or temporarily.
ii. Determine which services Mr LKD should access and provide consent to such as required.
The Order remains in effect until 3 December 2021.
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