NDU (Guardianship)

[2009] TASGAB 18

GUARDIANSHIP AND ADMINISTRATION BOARD 
HOBART

Mr NDU on the application of Mental Health Services

Neutral citation:  NDU (Guardianship) [2009] TASGAB 18

REASONS FOR DECISION

Anita Smith (President)
Hearing 25 August 2009

Guardianship – capacity to make reasonable judgments about accommodation and support – need for a guardian to determine accommodation and restrictions on movement
Guardianship and Administration Act 1995 s 20

1. Mr NDU, the proposed represented person is a 60 year old man who is at the time of the hearing living at the Roy Fagan Centre, a secure facility and an approved hospital managed by Mental Health Services.  He wishes to leave the Roy Fagan Centre however his treating team believe that he needs to be there for treatment and protection.  For reasons discussed in ENT (Guardianship) [2008] TASGAB 2 and EKR (Guardianship) [2009] TASGAB 2 Mental Health Services cannot keep the proposed represented person against his will without authority, so they have sought the appointment of a guardian.

2. In assessing an application for the appointment of a guardian, the Board must be satisfied that the proposed represented person has a disability, is by reason of that disability incapable of making reasonable decisions and is in need of a guardian.  The Board convened a hearing at the Roy Fagan Centre on 25 August 2009 to which the following persons attended, with their relationship to the proposed represented person noted below:

   Mr NDU - the proposed represented person

   Paul Plummer – Clinical Nurse Consultant, Roy Fagan Centre

   Dr Joanna Bakas – Old Age Psychiatrist, Roy Fagan Centre

   Dr Kanapathippillai Ratnagobal – Medical officer, Roy Fagan Centre

   Lisa Warner – the Public Guardian

   Jessica Watson – Client Account Manager, Public Trustee

   Lee Perry – Investigation and Liaison Officer, Guardianship and Administration Board

3. Dr Ratnagobal and Dr Bakas gave evidence that the proposed represented person has dementia arising from alcohol abuse.  He also has epilepsy arising from a motor vehicle accident.  The effect of this disability is that Mr NDU has significant memory problems and can, at times, be disinhibited and disruptive in his behaviour.  Mr NDU disputed the expertise of the medical staff saying that they had seen him only once.  He also stated that he had not known of the hearing.  Medical and nursing staff gave evidence that he has had numerous medical consultations prior to and since admission to the Roy Fagan Centre and that the purpose of the hearing had been explained to him, but he had forgotten.  The Board accepts that the proposed represented person is a person with a disability.

4. In 2008 the proposed represented person lived at a Health Centre when Dr Bakas was consulted about his challenging behaviour which resulted from his frontal lobe deficits.  He was, according to Dr Bakas’ report dated 6 March 2008, demonstrating ‘poor impulse control, poor decision making, perseveration and emotional lability.’  At that stage, Dr Bakas recommended that he move to a Lodge as a possible suitable alternative to the Health Centre and to the Roy Fagan Centre.  Clearly Dr Bakas’ recommendations were followed as he moved to a Lodge. At that stage a guardianship application was considered and dismissed but an administrator was appointed.

5. However Dr Bakas reported at the hearing that accommodation at the Lodge has also proven unviable because he was drinking alcohol there, verbally abusing staff, hassling other residents for alcohol or money and displaying sexual disinhibition.   The proposed represented person was moved to the Roy Fagan Centre in accordance with a further recommendation from Dr Bakas. 

6. The proposed represented person believed that his female friend, Q, had agreed to have him live with her.  Evidence presented to the Board indicated that Q is a good friend to the proposed represented person but cannot provide accommodation for him.  He also disputed any allegations of poor behaviour and any need for him to be accommodated at the Roy Fagan Centre.

7. Since moving to the Roy Fagan Centre, the proposed represented person has established a pattern of leaving the premises and returning there drunk and aggressive.  Therefore Mental Health Services were also seeking for a guardian to have authority to restrict the conditions of his leave from the premises.

8. Evidence from the medical and nursing staff at the Roy Fagan Centre was consistent that the Centre is not the appropriate facility for the proposed represented person in the longer term.  It is their intention to persist in searching for suitable alternatives but his circumstances and behaviour tend to limit the available choices and to the extent that no suitable alternative currently exists, the Centre is presently the most suitable alternative.  The Public Guardian who has been his guardian under an emergency order since 30 June 2009 agreed to the extent that she had given her approval for his ongoing accommodation at the Centre.

9. The Board was satisfied that two supported accommodation facilities had attempted to provide care for the proposed represented person but failed due to the behavioural effects of his disability.  The Board is also satisfied that the proposed represented person has no insight or memory of the behavioural difficulties which have presented such a challenge to those services.  The accommodation option that he currently prefers is unrealistic and unavailable.  Given that he shows no understanding of why he needs supported accommodation and no memory of previous accommodation difficulties, there is no prospect that he would make a reasonable decision about future accommodation.

10. The series of failed accommodation options and the proposed represented person’s attitude towards them satisfies the Board that he lacks capacity to make reasonable decisions about accommodation alternatives and that he is in need of a guardian.

11. The Public Guardian being the only person nominated for appointment, the Board was satisfied that the appointment of the Public Guardian will be in the proposed represented person’s best interests.  Providing the guardian with authority to restrict or permit leave from the Centre will also ensure that restrictions on his liberty are at the minimum required for the proper management of the Centre and the safety of the proposed 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 his person and circumstances; and is in need of a limited guardian;

THE BOARD ORDERS

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 decisions concerning:

1. where the represented person is to live, whether permanently or temporarily; and

2. authorising Roy Fagan Centre staff to impose restrictions on day leave from the Roy Fagan Centre.

1. That the order remains in effect to 24 August 2012.

Anita Smith
PRESIDENT

Statement of reasons requested 11 September 2009 and delivered 21September 2009.