NE
[2015] QCAT 434
•4 November 2015
| CITATION: | NE [2015] QCAT 434 |
| PARTIES: | NE |
| APPLICATION NUMBER: | GAA5766-15; GAA9135-15 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 4 November 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Casey |
| DELIVERED ON: | 4 November 2015 |
| DELIVERED AT: | Brisbane |
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| ORDERS MADE: | 1. The Tribunal appoints the Public Guardian as guardian for NE for decisions about the following personal matters: a) accommodation; b) with whom NE has contact and/or visits; c) health care. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in 5 years. | ||
| CATCHWORDS: | Guardianship and administration matters for adults Capacity of adult - need for guardian –appropriateness of appointees Powers of Attorney Act 1998 (Qld) | ||
APPEARANCES and REPRESENTATION (if any):
The following parties attended the hearing:
HM service provider, standing in for applicant
NN granddaughter and administrator for the adult for all financial matters, appointed by the Tribunal on 31 July 2014, reviewable in 5 years.
DW applicant and sister (attended by telephone).
REASONS FOR DECISION
History of the Application
NE, (the adult), is a 76 year old woman who resides in a residential aged care facility in Brisbane.
On 25 May 2015 the Tribunal received an application from DW, the adult’s sister, seeking her appointment as guardian for the adult.
On 11 September 2015 the Tribunal received an application from TS, care manager at the residential aged care facility in which the adult is accommodated. TS was proposing the appointment of NN, the adult’s granddaughter, as guardian for the adult.
The Legislation
The issues for the Tribunal, based upon the legislation, are:
a) Does NE have capacity to make personal decisions?
b) Is there a need for a guardian to be appointed?
c) If so, who is the most appropriate person for appointment?
The Tribunal is required to determine capacity as at the date of hearing in accordance with section 12 of the Guardianship and Administration Act 2000 (Qld) (GAA Act) as the Tribunal must be satisfied that the adult has impaired capacity before it can further consider the applications for the appointment of a guardian for the adult.
NE is presumed to have capacity in accordance with section 7 of the GAA Act and general principle 1 of schedule 1 under the GAA Act. The Tribunal will consider the medical evidence and submissions from the parties to determine if the presumption of capacity has been rebutted for the adult.
The GAA Act defines capacity as follows:
“Capacity for a person for a matter, means the person is capable of-
(a) understanding the nature and effect of decisions about a matter; and
(b) freely and voluntarily making decisions about the matter: and
(c) communicating the decisions in some way”.
The Tribunal, when considering the appointment of a guardian, must be satisfied not only in regard to capacity, but also of the other matters set out in section 12 of the GAA Act.
If the Tribunal determines that there is a need for the appointment of a guardian for NE, the Tribunal in deciding who to appoint in those roles, will, in accordance with subsection 14(1)(c) of the GAA Act, have regard to the appropriateness considerations set out in section 15 of the GAA Act.
The evidence
In addition to written material contained on the Tribunal’s file, all of the parties attending the hearing were given the opportunity to express their views. The views, where specifically relied upon by the Tribunal, are outlined below.
Does NE have capacity to make personal decisions?
The Tribunal had the benefit of written evidence from Dr Brendan Hughes, a consultant psychiatrist, and Dr Kym Wendt, a general practitioner.
In his letter dated 13 June 2014 to Ahlam Eskander, a social worker at Beaudesert Hospital, Dr Brendan Hughes states that he had been treating the adult since late 2012 for late onset schizophrenia, characterized by prominent persecutory and somatic delusions involving the alleged activity of her half-sister. The adult was, at that time, was subject to an involuntary treatment order under the Mental Health Act 2000 due to her lack of capacity to consent to psychiatric treatment which included depot anti-psychotic mediation. Dr Hughes provides he was ‘struck by (the adult’s) lack of understanding of why she was in hospital, lack of understanding of simple medical issues such as constipation and having an indwelling catheter and an overall lack of understanding of her care needs’.
A report dated 9 September 2015 by Dr Kym Wendt, a general practitioner, includes that NE has diagnoses of schizophrenia and somatization disorder with abdominal pain. Dr Wendt states the adult is accommodated in the secure ward of the care facility to allow for ‘constant supervision’ and the prevention of ‘wandering’ behaviour. In Dr Wendt’s opinion, the adult is unable to make all simple and complex personal decisions.
The Tribunal obtained oral evidence from parties attending the hearing. All parties concurred with the medical evidence. HM stated the adult has limited communication in English and is afforded Serbian interpretation by volunteers and care facility staff. HM told the Tribunal the adult is no longer subject to an involuntary treatment order under the Mental Health Act 2000, and is regularly reviewed by the Older Persons’ Mental Health Service and by Dr Kym Wendt. NN and DW reported the adult demonstrates confusion and short-term memory deficits.
Conclusion
Having regard to the written and oral evidence the Tribunal makes the following findings of fact.
NE has a diagnosis of late onset schizophrenia.
She receives care in a secure unit within a residential aged care facility.
The adult demonstrates disorientation, confusion and poor recall and is at risk of misadventure due to wandering behaviour.
The Tribunal concludes that, due to her cognitive deficits, NE is unable to understand the nature and effect of decisions about her personal matters. The Tribunal is satisfied that the presumption contained in the GAA Act that NE has capacity for personal matters is rebutted.
Is there a need for the appointment of a guardian?
The evidence pertaining to the adult’s personal circumstances follows.
NE entered her current accommodation in a secure residential aged care facility in 2014, following a decision made informally by members of the adult’s family, including NN.
The adult’s first language is Serbian. The adult has recently demonstrated reducing proficiency in English language skills, reverting predominantly to her first language. Serbian-speaking nursing home staff and volunteers are utilized by the residential aged care facility to provide the adult with opportunity to communicate in Serbian, including to communicate her messages of care needs, (e.g. location and nature of pain).
While NN seeks for the adult to remain at this facility, as she believes the adult is receiving appropriate care commensurate with her needs, DW wants to transfer the adult to an alternative residential aged care facility.
DW expressed concern that, in her current location, the adult is unable to express her needs when volunteers and staff are unavailable to provide translation for the adult. She further submitted the adult is culturally and linguistically impoverished in the current environment, and is ‘isolated’ from other family members. Additionally, DW submitted the adult was not being provided with appropriate aged care at the current location, as the nursing home was ‘understaffed’ and that medical and nursing staff were denying the adult naturopathy treatments, including teas, in their management of the adult’s health conditions.
DW wants to relocate the adult to a specific nursing home in Sydney in which, she submitted, staff and approximately 70% of residents communicate in Serbian. She stated she would be able to visit the adult more often with less expenditure, as she could travel from her home in Melbourne and stay with her brother in Canberra in order to visit the adult in Sydney.
Decisions are required in relation to the appropriateness of the current accommodation along with the potential sourcing and monitoring of alternative, permanent accommodation. The accommodation decision is to encompass the adult’s holistic needs, including her physical and mental health care requirements along with consideration of her cultural, linguistic, social, familial and emotional requirements.
Health care decisions are required to ensure the adult receives appropriate treatment for a number of physical health conditions affecting her bone density along with her thyroid and urinary tract function. HM stated Dr Kym Wendt regularly review the adult on site and that the adult undergoes frequent blood tests and receives medications for multiple health conditions. The Statutory Health Attorney regime is not working in the adult’s best interests, as care staff are provided with differing views and instruction from family members in the context of their poor collaboration and lack of consensus.
As the Statutory Health Care Attorney regime is not currently effective, a formal decision maker is required for health care decisions.
NE has contact with family members. NN reports she and her sister visit the adult weekly and fortnightly respectively, and the adult regularly enjoys visits from her great-grandchildren. NN reported her father, whose physical health is compromised, has occasionally been well enough to visit the adult. DW submitted that since her retirement in 2013 she has sought increased contact with the adult, stating she visited the adult twice since her retirement. Prior to this, DW last had face-to-face contact with the adult in 2007 and 1996, with intermittent telephone contact over the years. DW stated her brother, who resides in Sydney, had visited the adult in the care facility on one occasion.
The adult’s contact with DW remains a contentious issue. Historically, symptoms of the adult’s mental illness have included paranoid and persecutory delusions in relation to DW, causing the adult fear and distress. DW submitted that since her initial visit to the care facility, she has been endeavouring to telephone the adult once daily for up to 10 minutes, while the adult waits for her lunch in the facility’s dining room. HM told the Tribunal the adult has been ‘upset’ and has demonstrated adverse ‘behaviour’ following phone calls from DW. As a consequence the nursing home erroneously took instruction from NN to deny the adult telephone contact with DW, believing NN’s incorrect assertions that she had authority to do so as administrator for the adult. The facility’s care manager, TS, submitted her application to the Tribunal when she became aware that the adult did not have a formal decision maker for personal matters and that there was conflict between family members. HM confirmed that, in the absence of a guardian to make decisions about with the nature and frequency of contact the adult has with other persons, care staff are unable to protect the adult from contact with others that may cause her distress.
DW submitted the adult was ‘never irritated’ by her telephone calls, stating the adult ‘bursts into tears’ and then ‘calms’ during the phone calls.
Conclusion
Decisions in relation to NE’s accommodation are required. It is essential that the adult be accommodated where she can receive care commensurate with her holistic needs.
The adult has a number of co-morbidities. She requires a decision maker to ensure she receives appropriate medical treatment.
NE is at an increased risk of distress due to interactions with others. It follows that the adult will need protection from such distress.
Pursuant to s 12 of the GAA Act the Tribunal is satisfied there is a need for decisions pertaining to accommodation, health care and with whom NE has contact and/or visits. There must be an adequate and effective decision making regime in place for the adult as otherwise the adult’s needs will not be met and her interests will not be protected.
Who is the most appropriate person for appointment?
The options for appointment as the adult’s guardian are DW, NN or the Public Guardian.
In her evidence to the Tribunal NN submitted she has an enduring relationship with the adult and has demonstrated a commitment to assisting the adult over many years. She said she is cognizant of the adult’s extensive medical history and continues to liaise with medical and nursing staff in relation to the adult’s care requirements. She stated she consults regularly with members of the adult’s family in relation to the adult, including the adult’s son and granddaughter (NN’s father and sister, respectively).
DW told the Tribunal she has attempted to increase contact with the adult since 2013, following many years of minimal contact with the adult, including periods in which the adult held delusions about her. She submitted she is concerned the adult is experiencing physical deterioration and isolation in her current accommodation, and is supported in her application by her brother in Sydney.
Both NN and DW informed the Tribunal of impoverished and negative communication with each other in the context of a sustained level of conflict. They have been unable to collaborate in order to effect decisions in relation to the adult’s personal matters due to the disparity in their viewpoints. This has been demonstrated by the ineffectiveness of the Statutory Health Attorney regime, due to lack of collaboration and consensus, and the vulnerability of the adult to having contact with others that was determined, by clinical staff, to cause her distress.
Due to the extent of negative and inadequate communication processes that presently exist between NN and DW, the Tribunal is not satisfied either of the proposed appointees would be able to effectively consult with each other or be receptive to variant opinions in a way that was consistent with the legislative requirements, including the General Principles.
Conclusion
The Tribunal concludes that neither NN nor DW is appropriate for appointment as guardian for the personal matters mentioned as they would be unable to discharge effective substituted decision-making for the adult.
Section 14(2) of the Guardianship and Administration Act 2000 empowers the Tribunal to appoint the Public Guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter.
The Tribunal is of the view that an independent guardian is the only entity capable of complying with the General Principles, and would therefore be better placed to liaise with all interested parties, assess the relative merits of options for decisions on personal matters and make decisions that best meet the adult’s needs. In this respect, as the Public Guardian is an independent decision maker with extensive skills and experience, the Tribunal appoints the Public Guardian as guardian for NE for the matters mentioned. The appointment is reviewable and is to be reviewed in five years.
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