NEV (Advice and Direction) - [2014] TASGAB 18

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

NEV – Advice and directions to a guardian

NEV (Advice and Direction) [2014] TASGAB 18

REASONS FOR DECISION

Anita Smith (President)

Date of decision: 3 October 2014

Guardianship – advice and direction to a guardian – guardian’s activities thwarted by a family member/carer – vulnerable aged person in inappropriate living condition – directions given to promote the represented person’s safety – need for enforcement of decisions

Guardianship and Administration Act 1995 s.28, 31

On 11 July 2014 the Board made an interim guardianship order pursuant to section 73A of the Guardianship and Administration Act 1995 with respect to NEV (the represented person) for the period of an adjournment and any subsequent adjournment or until the application is dismissed. The powers and duties of the guardian are limited to decisions concerning where the represented person is to live either permanently or temporarily, and consent to any health care that is in her best interests and to refuse or withdraw consent to any such treatment. This decision relates to the Public Guardian’s second request for urgent advice and direction to extend her powers.
Prior to the hearing, WI completed a Health Care Professional Report on 25 May 2014 which states that NEV, who is 92 years old, has dementia and is unlikely to be able to make reasonable decisions about her accommodation. WI also expressed:
“serious concern regarding the immediate safety of NEV whom currently lives alone at home despite serious cognitive impairment from Alzheimer’s dementia.”
She noted that 4 out of 5 of her adult children believed that the represented person’s current care regime is insufficient for her needs and that she requires fully supervised care. From other papers supplied to the Board, it is clear that the dissenter is SV who is the represented person’s primary carer.
WI noted that the represented person has significant decision making deficits, including her orientation to person, place and time, her expressive and receptive communication, her capacity for new learning, susceptibility to influence and her planning and reasoning skills. WI stated:
“I have serious concerns regarding the safety of NEV in the current arrangements and have done so for some time. Given the disagreement in level of care required, between siblings, it is imperative that the Guardianship Board becomes involved as soon as possible to ensure her continued well-being.”
The papers supplied to the Board indicated that one of the concerns arose from an allegation that the represented person’s primary carer was administering medications to the represented person in an unsatisfactory fashion, placing her at risk.
The hearing was adjourned on the application of the Legal Aid Commission, who appeared for the represented person, on two grounds. First, that the represented person had been unable to attend on that date. Second, the solicitor was seeking a further assessment of the represented person’s capacity from Geriatrician, Dr. Frank Nicklason, who has an ongoing relationship with the represented person. The Board granted the adjournment, but noting WI’s concerns, made an interim order to meet the Board’s duty to protect the best interests of the represented person until the matter can be heard.
WI attended a professional development session at the Royal Hobart Hospital on 13 August 2014 which was presented by the writer. The writer did not know WI at that time and was not introduced to her by name. WI asked the writer a question about the powers of the Public Guardian with reference to an anonymous case and stated her distress that although the Public Guardian had been appointed for a month for an extremely vulnerable person living in unsafe conditions, the anonymous person was still not in respite. She expressed grave reservations about the effectiveness of the Public Guardian. The writer encouraged the unknown doctor to contact the Public Guardian to express those concerns. Because of the geographical area described, the writer later deduced from the anonymous case description the identity of WI and the case to which she referred.
On 1 October 2014 the Public Guardian’s delegate made a request for urgent advice and direction noting that the Public Guardian had made an arrangement for respite which was thwarted by SV. The Public Guardian had also made an appointment for the represented person to see Dr. Nicklason which had also been thwarted. The request for advice and direction sought an extension of the order to ensure that the represented person attended an appointment with Dr. Nicklason on 2 October 2014. The extension with section 28 powers was granted in accordance with the request.
SV sent an email to the Public Guardian on 1 October 2014 saying the represented person would not attend the appointment. SV stated appointment would cause distress because the represented person’s dog was due for surgery and she would be extremely anxious. He also inferred that the appointment was premature due to a new herbal drug therapy that will shortly be commenced and may have an effect on the represented person’s performance in an assessment of her capacity. He accuses the Public Guardian’s delegate of threatening and bullying him.
Despite the extension to grant section 28 powers, the guardian was unable to achieve the represented person’s attendance at the appointment on 2 October 2014. The guardian informed the Board that the represented person’s solicitor and medical practitioner had advised SV to allow the appointment to proceed. According to the Public Guardian, this is the third appointment he has thwarted for Dr. Nicklason to assess the represented person.
The Public Guardian forwarded the Board an email from Dr. Natasha Litjens, a medical practitioner which she sent to SV and the Public Guardian. It states:

“It may be wise for NEV to attend the scheduled statutory appointment, if only for the reason that it has been scheduled and keeps proceedings straightforward.
However as treatment of NEV’s anxiety has not been started yet, I think there is a very strong case that can be made that there should be no decisions made regarding your mum’s capacity to continue to live on her own, in her current location, until 6 weeks anti-anxiety treatment has been tried.
i.e. it may be necessary to have another formal cognitive assessment in approximately 7 weeks time once natural therapy treatment has been trialled.
(i.e. the current statutory meeting, could be regarded as premature, and if possible could benefit from being rescheduled to early Dec 2014, as arranged by SV).
SV, I can see NEV on Mon 6th October 11.30am to start the new treatment as I am now settled into my new clinic location. …
My apologies everyone, for the delay in starting the natural therapies to assist NEV’s anxiety. This treatment is not available over the counter in a standard pharmacy, i.e. had to be especially ordered for NEV, It also requires careful regular ongoing supervision, for side effect/ treatment outcome, hence it could not be started earlier ...
i.e. SV has not delayed treatment, the issue in this case has been entirely from my end, here at XXXX.”

Of concern from Dr. Litjens’ email is the she appears to be of the belief that SV has some authority with respect to the represented person’s medical treatment. With the appointment of the Public Guardian as a limited guardian, which includes health care, there can be no doubt that the Public Guardian is the s.4 ‘person responsible’ with regards to the represented person and the commencement (if at all) of the natural therapy treatment relies on the Public Guardian giving consent to that treatment. Presumably the Public Guardian has given consent for Dr. Litjens to be communicating directly with SV, or otherwise her email to him is a potential breach of patient confidentiality.
The Public Guardian’s delegate also forwarded emails from SV. It is clear from the emails that he has little respect for or understanding of the Public Guardian or her role.
The Board notes that serious concerns expressed by a responsible medical practitioner with respect to an elderly and vulnerable patient have gone unaddressed for an unacceptable period of time. The Public Guardian in her second urgent request for advice and direction described the represented person’s home as ‘a rabbit warren.’ She said that the house has very steep stairs and, given the represented person’s frailty, it is ‘an accident waiting to happen’. She expressed frustration and helplessness in the face of SV’s opposition and maneuvering with respect to every attempted intervention by the Public Guardian. She repeated concerns that the represented person is feeding meals provided for her to her dog. She noted that the family members still prefer the appointment of an in-house carer (in addition to care provided by the family) to permanent nursing home care but that such an option is increasingly unfeasible.
The Public Guardian’s delegate expressed that her main concern is that the represented person may fall in the home and break her hip or leg and, from that point, she would be left with no choice about where she lives or worse that such a fall might hasten her death. The Public Guardian’s delegate stated that the thwarted booking for respite care was at XXXX. In the guardian’s view, this venue had significant advantages for the represented person because it is close to family members and is staffed by persons who know the represented person and with whom she is comfortable. In her view, that venue had the greatest chance for success for the represented person’s having the benefit of respite and having a positive experience which might possibly have changed her wishes with respect to permanent residential care.
The Board notes Dr. Litjens’ advice that no decisions about the represented person’s capacity to decide accommodation matters be made until the anti-anxiety medication has been trialled, but she does not advise against respite itself. The Board also notes that the treatment Dr. Litjens is starting will require careful regular ongoing supervision, for side effects and treatment outcome. Noting the allegations in the papers that medication regimes have not been satisfactorily administered, if such allegations are correct, then there could be reason for concern that the careful regular ongoing supervision required may be lacking also.
The Board notes that none of the statements about:
·A lack of safety in the represented person’s home and risk of serious falls,
·Unsatisfactory administration of the represented person’s medications,
·Inadequate nutrition due to feeding her meals to her dog,
·SV’s thwarting of attempts by the Public Guardian to have the represented person admitted to respite or assessed for capacity, and
·SV’s failure to follow advice from medical and legal practitioners
have been tested at a hearing. However, prima facie, it does add up to a concerning picture if such allegations should be proven correct. Similar scenarios have frequently given rise to emergency guardianship orders to have persons admitted to respite care until such time as the allegations can be tested at a hearing.
The Board is also cognisant that the represented person is on an interim order and the hearing will not be re-convened until a capacity assessment is completed in accordance with the application by the represented person’s own solicitor. If attempts to have the represented person assessed are continually thwarted, the hearing will be unacceptably delayed and (i) the represented person remains under a guardian while the elements in section 20 have not been proved, and (b) the allegations remain untested.
The Public Guardian’s delegate has made recent enquiries whether respite would again be available at XXXX. Sadly the response from management of that facility was that (a) they now have no beds available until April 2015, and (b) in any event, because of the represented person’s family dynamics they consider that admitting the represented person to that facility will put their staff at an unacceptable risk. The Public Guardian can arrange respite at XXXX until 12th November 2014.
The Board considers that a great deal of distress to the represented person and all of her adult children may have been avoided had the represented person been admitted to respite care at an early stage as it would have enabled (i) a non-confrontational environment in which her capacity could have been assessed and (ii) a realistic appraisal of her ability to continue living in her home environment as against how she actually responds to and copes with living in residential aged care. The prima facie evidence before the Board also suggests that while SV retains control of the represented person in her home, the final determination of this matter may be unacceptably delayed. This family, and in particular the represented person, needs to have this matter resolved as quickly as possible.
This is an unusual circumstance and a matter in which the Public Guardian’s delegate has described real doubt and difficulty in the exercise of her powers. In the circumstances, the Board considers that the Public Guardian needs to take decisive action to enable this matter to be determined as quickly as possible. For that reason it is issuing directions which are binding on the guardian.
The Board gives the Public Guardian the following directions:

(a)As soon as possible to have the represented person admitted to respite care at XXXX or another suitable facility and to keep the represented person at a respite facility until the guardian determines that respite care is no longer required.
(b)To take all reasonable measures to have the represented person’s capacity to make accommodation decisions and her capacity to understand the nature and effect of an enduring power of attorney assessed by a suitably qualified medical practitioner, including any follow-up assessments that may be required.

With respect to the powers of the Public Guardian:

(c)Subject to the following, that the powers and duties of the guardian are limited to decisions concerning where NEV is to live either permanently or temporarily, and consent to any health care that is in the best interests of NEV and to refuse or withdraw consent to any such treatment
(d)The Public Guardian is at liberty to apply at short notice should she require additional powers to restrict visits to the represented person to such extent as may be necessary in her best interests and to prohibit visits by any person (including an application for a restraint order on the represented person’s behalf) if the guardian reasonably believes that they would have an adverse effect on the represented person.
(e)The Board specifies that:
a.Where the guardian holds a reasonable belief that a measure or action is in the best interests of the represented person, and
b.It is necessary or desirable to take that measure or action in the circumstances, then

any of QT, KT, TI or the Commissioner of Police (or his delegate) may take the following measures or actions to ensure that the represented person complies with any decision of the guardian in the exercise of the powers and duties conferred by the order:
c.Facilitate transport of the represented person to any medical appointment with Dr. Nicklason.
d.Facilitate transport of the represented person to any place where the guardian determines that the represented person shall reside temporarily for the purpose of respite or otherwise.
e.To use such reasonable force as is necessary to effect the guardian’s purpose.

Anita Smith
PRESIDENT