MJWE (Guardianship)

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

MJWE (Guardianship) [2016] TASGAB 11

REASONS FOR DECISION

Wendy Hudson (Chair)

Hearing 2 September 2016

Guardianship – healthcare decisions - need for a guardian or person responsible – suitability of private guardian – inability to understand role of guardian – family conflict
Guardianship and Administration Act 1995.

On 2 September 2016 the Board made an order appointing the Public Guardian as MJWE guardian. Her son, LC, has requested a statement of reasons.
MJWE, aged 92, is a resident at Nursing Home. Prior to her move to Nursing Home in early February 2016, MJWE had been admitted to the Roy Fagan Centre. MJWE’s history around this time includes the following guardianship orders by the Board:
a)     4 December 2015, an Emergency Guardianship Order appointing the Public Guardian, decisions could include health care, accommodation, support services
b)    4 January 2016, an extension of the Emergency Guardianship Order
c)     21 January 2016, LC was appointed as guardian until 20 April 2016, decisions limited to where MJWE should live
d)    5 July 2016, an Emergency Guardianship Order appointing the Public Guardian, decisions could include health care, accommodation, support services
e)    2 August 2016, an extension of the Emergency Guardianship Order which expired on 30 August 2016.
LC together with his solicitor, Mr Aled Vince, Ms Kim Barker (Public Guardian), KC (Facility Manager), BC (Nursing Home), and Ms Elizabeth Dalgleish (investigator for the Board) attended the hearing.
The Board had the following documents available to it prior to the hearing:
a)     Application by BC
b)    Medical report by Dr Alison Cleary, Geriatrician, dated 14 January 2016
c)     Reports by DBMAS (Dementia Behaviour Management Advisory Services) dated 19 February 2016 and 8 July 2016
d)    Health Care Professional Report by Dr Stephen Webber, General Practitioner, dated 13 July 2016
e)    Progress notes from Nursing Home and meeting notes of 28 June 2016
f)   Reports by the Public Guardian dated 28 July 2016 and 29 August 2016
g)     Severe Behaviour Response Teams report dated 27 July 2016.
In appointing a guardian, the Board must be satisfied of the elements in section 20(1) of the Guardianship and Administration Act 1995 (the Act), that is whether MJWE:
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 her person or circumstances, and
c)     is in need of a guardian.
All parties agreed that MJWE was a person with a disability and was, as a result, unable to make reasonable judgements. The two issues for consideration at the hearing were therefore limited to whether MJWE was in need of a guardian and if so, whether LC or the Public Guardian should be appointed.
Again, all parties agreed that the current decisions to be made for MJWE were limited to her health care. Mr Vince submitted that there was no need for a guardian; as such decisions could be made by LC, as MJWE’s person responsible. However, BC’s application identified that a less restrictive alternative may not be possible, noting that ‘MJWE’s person responsible, son LC disagrees with the recommended course of treatment’ and that there was family conflict in relation to the administration of appropriate medications or treatment to manage MJWE’s condition. This position was also supported by Dr Webber who highlighted that MJWE’s aggressive behaviour towards carers had necessitated treatment changes but that ‘…these changes supported by specialist advice though not consistently by her N.O.K…’ Dr Webber was of the opinion that the appointment of a guardian would be to MJWE’s benefit.
In response to the concerns raised by BC, Mr Vince acknowledged that LC’s interpersonal skills can come across as difficult to deal with, ‘he can rub people the wrong way’, but he also noted that LC had done everything in MJWE’s best interests. Mr Vince stated that LC is ‘…not a passive decision maker…’, that LC does everything he can to vet the decisions that are being made, and that he had ultimately agreed at the case conference to the recommended course of treatment referred to in the application, that is the re-introduction of Risperidone. Mr Vince further stated that there was no discussion at the case conference in relation to increasing the dosage.
The Board referred Mr Vince to a number of comments made in the reports which raised concerns regarding LC’s ability to act in the best interests of MJWE, they included:
a)     Dr Cleary provided a history that there ‘…were also concerns for how her son was operating in the role of Person Responsible and his behaviours and increasing conflict with care providers’. In relation to LC’s interpersonal skills, Dr Cleary stated ‘It has been noted by myself, and the nursing care staff that LC’s interpersonal style can at times be confrontational and authoritative. I have found communication and care planning with LC to be quite challenging and practically difficult. He often rings multiple people or services with specific issues, but then struggles to understand the roles or medical systems despite advice…I raised the issue of his communication style and how this may cause conflict with staff, he seems insightless as to his manner and instead directed conversation to the nursing staff’s style and his mothers’ agitation and care issues. Despite explanations provided by myself, my social workers and the Public Guardian, my observation of LC is that he seemed to lack understanding as to the specific legality of the Emergency Guardianship order…I have concerns for LC’s ability to appropriately understand medical matters, the recent poor communication pattern and his inter personal and at times confrontational style…’
b)    DBMAS noted that LC had contacted their service to discuss the administration of Risperidone. During the first call, which occurred prior to a case conference on 28 June 2016, LC was noted to go ‘…off track as LC made reference to matters of the nursing home’s financial demands and related this to the issue of use of Risperidone. The conversation was beginning to not make a lot of sense…’. The second call occurred after LC had agreed at the case conference that Risperidone would be re-introduced, ‘…since the meeting he was not sure that he had made the right decision regarding the Risperidone. He said he felt forced into a corner, he also mentioned family dispute as a factor in making the wrong decision. I gave LC time to ventilate his concerns and we went over the same information discussed in the meeting…’. The third call occurred on 7 July 2016 after the application for an Emergency Guardianship order, LC ‘…requested I contact the Registrar…to inform that he had not denied MJWE having Risperidone but that when he was asked if the dose could be increased he declined to give permission and said he needed to think about it. I explained that the issue regarding referral to the GAB was not related to doses of Risperidone it was related to concern for how he was operating in the role of next of kin with increasing conflict which was hindering staff being able to apply appropriate care and treatment. LC did not appear to take on board that staff were fulfilling their duty in providing the most appropriate care and treatment to ease suffering and maintain dignity.’
c)     The notes of the case conference held on 28 June 2016 recorded ‘LC continues to believe that his mother has the capacity to make decisions relating to her care and needs, citing her refusal of her medication as a rational decision’.
In relation to the above matters, Mr Vince stated that he did not accept that LC does not understand medical processes and questioned LC in relation to his belief that MJWE has capacity to make decisions. LC indicated that his mother could not make her own decisions and when further questioned by the Board, referred to a letter from the Aged Care Commissioner who deals with complaints against care providers. The letter dated 21 April 2016, (copy provided by BC) stated, in part, ’…I consider it reasonable for the service to take your mother’s wishes into account, in addition to your own…’ and ‘…each care recipient has the right “to be treated and accepted as an individual, and to have his or her individual preferences respected” and “to make decisions relating to his or her own care”. LC indicated that this was relevant but rather confusing to the current situation. BC stated that LC had given the letter to her whilst discussing the decisions he makes as person responsible and that LC had said that he wasn’t able to make decisions, as MJWE could make her own decisions. LC stated that this was in relation to a decision about MJWE moving rooms, where he was of the view that his mother had a degree of intelligence, acting instinctively, MJWE knew she did not like the new room.
The letter from the Aged Care Commissioner is in relation to a complaint made by LC sometime ago in relation to the care provided to his mother whilst she was at home by a different provider. Although the covering letter referred to the determination as ‘Attachment A’, LC did not provide a copy of it to Nursing Home or the Board. Given that MJWE’s condition has deteriorated since that time, requiring an admission to the Roy Fagan Centre and admission to a nursing home, it is unlikely to be relevant or applicable to the current situation. In respect of the decision to be made about a change of rooms for MJWE, this required a broader consideration of the circumstances rather than whether MJWE liked the room or not. BC stated that another consideration was whether the alternative room would mininmise MJWE’s intrusions into other residents’ rooms, where she was reported to become threatening, removing their belongings.
When asked further about MJWE’s ability to make decisions regarding Risperidone, LC said MJWE consistently says that she does not want the medication and ‘…that’s not a cognitive decision, that’s a decision that comes from years of experience with drugs and drug reactions…’ When asked by Mr Vince whether his mother had medical capacity to make decisions, LC said ‘No, she doesn’t, not cognitive decisions, she can’t reason to make the decision, but she can make a statement that could be valid.’
The Board further noted that the Public Guardian was of the view that LC had not understood the role of the guardian during the emergency orders. Mr Vince agreed.
The Board also questioned LC’s ability to make a decision based on a broad consideration rather than as a result of one particular factor, noting DBMAS had stated ‘…her son LC had insisted that the GP cease her regular does of Risperidone. His main reason for this was that he appeared to be fixated on the associated risk of stroke’. The other relevant factors which would also require some consideration were noted by DBMAS to include:
a)     when MJWE’s Risperidone medication ceased, her level of agitation, verbal and physical aggression during assistance with personal care had increased
b)    staff reported that MJWE made less fuss during personal care and presented happier when taking Risperidone
c)     the level of aggression directed at care staff had reached a high level of risk to both MJWE and staff and there was consideration of another admission to Roy Fagan Centre ‘…which would be more disruptive and distressing…’ to MJWE
d)    Dr Cleary advised that Risperidone was the main medication that she felt had some effect, that ‘…antipsychotics do come with high risk for cardiac events, stroke, and death. But I usually advise them on the grounds of relief of agitation, quality of life and in this situation for staff and patient safety…’.
The Public Guardian, BC and KC advised that the pharmacy review, that LC had sought, by Mr Peter Tenni which suggested a reduction in the Risperidone had to be taken into account in a more holistic view of MJWE and what is to be achieved. KC noted that the dose of Risperidone also impacts on her ability to take pain medication and thereby increases her mobility which impacts on her quality of life. BC stated that they considered MJWE’s dignity and quality of life rather than quantity of life, at 92; and also the opinions of experts in the filed such as Dr Cleary and DBMAS. The broader issues of staff/resident safety and the possibility of another admission to the Roy Fagan Centre also need to be considered.
The notes of the case conference held on 28 June 2016 recorded that Dr Cleary believed that ‘Risperidone is the only medication with some effect in her particular circumstances’. Dr Webber was also of that view however LC had read that Alzheimers’ Australia recommended its use for only 15 weeks and opposed its reintroduction in order to enable MJWE to remain at Nursing Home and to receive care from staff without physical aggression. BC discussed the need to consider the quality of life benefits versus the risk of a stroke or heart attack, Dementia is a terminal illness and at this stage the focus was to ensure MJWE’s quality of life. The notes record that MJWE’s granddaughter, FC, was strongly in favour of ensuring her grandmother’s quality of life and wanted her to be able to remain at Nursing Home and to be attended to by staff safely. FC also noted that she would make decisions for her grandmother ‘only reluctantly due to the conflict she knows it would cause with her father’. Although the notes ultimately record LC’s agreement for recommencing Risperidone, in an email to the Board dated 6 July 2016, LC stated that he had given approval to BC ‘…Following her confrontational use of duress and threats…’. It was also evident at the hearing that the relationship between LC and BC was strained and it is highly likely that this will impact on the decisions to be made for MJWE.
In relation to family conflict, Mr Vince stated that there would be no future family conflict as FC has not been involved and will not have an active role in the future. Mr Vince noted that FC had not appeared at the hearing which indicates that she does not wish to be involved further. It appears however that LC does recognise that there is family conflict as he reported to DBMAS and consequently the Board is of the view that the statement above by FC may indicate that she does wish to be involved in the decisions being made for MJWE but finds this difficult, given the likely conflict that may result.
The Public Guardian and BC described feeling pressure from LC, staff feeling intimidated by his approach; stating that he was quite assertive to obtain treatment for MJWE although not recommended by treating professionals or to change the medication regime even though nursing staff were unable to do so without doctors’ advice which had resulted in conflict between staff and LC. BC also referred to a conversation with Dr Webber, where she gained the impression that Dr Webber also felt pressured by LC to make changes to MJWE’s Risperidone. Although the last comment was challenged by Mr Vince, the Board was of the view that the statement was not inconsistent with the views expressed by others.
Taking all of the above into account the Board was not satisfied that LC will act in the best interests of MJWE or that he is a suitable person to act as 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 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.
That the order remains in effect to 1 September 2019.

Wendy Hudson

Chair

7^th October 2016

[2016] TASGAB 11

7 October 2016