MD (Guardianship) - [2017] TASGAB 6

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

MD (Guardianship) [2017] TASGAB 6

REASONS FOR DECISION

Wendy Hudson (Chair)
Justin Otlowski (Member)
Angela McKenzie (Member)

Hearing 24 March 2017

Guardianship – accommodation decision - need for a guardian or person responsible – least restrictive – suitability of husband rather than independent guardian – inability to understand role of guardian

Guardianship and Administration Act 1995 s. 6, 20, 21

On 24 March 2017 the Guardianship and Administration Board (the Board) heard an application for guardianship for MD. Her husband, LD, has requested a Statement of Reasons in relation to the Board’s decision to appoint the Public Guardian.
The application for guardianship was made by Ms Katrina Scott-Charlton, social worker at the Royal Hobart Hospital (RHH). Present at the hearing were LD with his solicitor, UE; Ms Scott-Charlton and Ms Sarah Booth from the RHH; Mr David Neal, General Manager, Ms Sarah Gaffney, Clinical Manager and ONX, Care Manager, from Aged Care Facility; Ms Angela Proposch, from the Office of the Public Guardian; OC, LD’s sister-in-law, and a number of friends of LD and MD.
The Board had before it a number of documents including a Health Care Professional Report by Dr Blair Adamczewski, correspondence from LD and his solicitor, and reports from the Public Guardian.
The relevant history leading up to the application includes the following:
a)MD had been admitted to the RHH Older Person’s Unit in August/September 2016 with delirium, stroke, left sided weakness and reduced mobility; in December 2016 with delirium and cognitive decline; and on 12 January 2017 following a fall at home. On each occasion MD was assessed as high risk but discharged home with daily care services.
b)On 19 January 2017 MD was again admitted to the RHH after a fall at home and decline in her mobility. On this occasion however, the medical team including geriatrician, nursing staff, speech pathologist, social worker, physiotherapist and occupational therapist, were of the view that the most appropriate environment to meet her care needs was in a residential aged care facility. This view was not accepted by LD, who was keen to take his wife home.
c)On 3 February 2017 the Board made an emergency guardianship order in respect of MD, appointing the Public Guardian. That order was extended for a further 28 days on 3 March 2017. The Public Guardian’s powers were limited to:
(i) decisions concerning where the represented person is to live whether permanently or temporarily, and
(ii) 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, and
(iii) decisions concerning restricting visits to the represented person to such an extent as may be necessary in her best interests and to prohibit visits by any person if the guardian believes that they would have an adverse effect on the represented person.
d)On 8 February 2017 the Public Guardian decided that MD would not be able to return home and would be transferred to Aged Care Facility. MD became a respite resident of Aged Care Facility on 9 February 2017.
e)LD did not agree with the Guardian’s decision for MD to be transferred to Aged Care Facility and wanted his wife to return home. Consequently, the application for an ongoing guardian to be appointed was made.
When assessing an application for the appointment of a guardian the Board needs to be satisfied of the matters in sections 20 of the Guardianship and Administration Act 1995 (the Act); that MD:
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 person or circumstances
c)is in need of a guardian.
The Board must also balance the principles in section 6 of the Act, which include the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; the best interests of and 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.
During the hearing, UE, LD’s solicitor, advised that there was no dispute that MD suffered from a disability which impacts on her ability to make reasonable judgements in respect of matters relating to her person or circumstances. Furthermore, there was ultimately consensus that MD was in need of a guardian. The only issue for determination by the Board was whether the Public Guardian or LD should be appointed as MD’s guardian.
UE submitted that LD wanted to take MD home with increased services. This remained LD’s objective during the hearing. The Board clarified with LD that the Board’s role was not to make a decision as to where MD should live, whether at home with him or remain in an aged care facility, the Board’s role was to appoint a guardian who would later make that decision, taking into account all relevant matters.
When asked if he were appointed as MD’s guardian, how he would make the decision regarding where she should live, LD stated that he would consult with the relevant people who would provide services in the home; that MD deserved to spend her limited precious time in the home; and that the alternative of remaining in the nursing home was untenable.
The Board considered the provisions of section 21 of the Act which sets out factors to be taken into account when assessing whether a person is eligible for appointment as a guardian. The Board was of the view that LD did not understand the role of a guardian and the steps required of him in considering where MD should reside, rather he had already decided that she should return home irrespective of the views expressed by her treating medical team. The Board was also of the view that the history of ongoing disagreement between LD and the medical team at the RHH and the recent views of staff at Aged Care Facility regarding where MD should reside warranted appointment of an independent guardian. An independent guardian will exercise its powers under the Act, impartially and uninfluenced by any particular personal or family interest and point of view.
For the above reasons the Board concluded that the Public Guardian should be appointed as MD’s guardian for a 3 year period limited to the same decision making powers and duties as currently provided by the emergency guardianship order.
After hearing the application for a guardianship order in respect of MD (hereinafter called the ‘represented person’) the Board was satisfied that the represented person
·     is a person with a disability, and
·     is unable by reason of the disability to make reasonable judgements in respect of their person and circumstances; and
·     is in need of a limited guardian.

And On 24 March 2017 the Board ordered:

1. That The Public Guardian be appointed as the represented person’s guardian.
2. That the powers and duties of the guardian are limited to:
(i) decisions concerning where the represented person is to live whether permanently or temporarily, and
(ii) 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, and
(iii) decisions concerning restricting visits to the represented person to such an extent as may be necessary in her best interests and to prohibit visits by any person if the guardian believes that they would have an adverse effect on the represented person.

3. That the order remains in effect to 23 March 2020.

Wendy Hudson Justin Otlowski Angela McKenzie
Chairperson Member Member