NN (Guardianship)
[2018] TASGAB 14
•20 July 2018
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
NN (Guardianship) [2018] TASGAB 14
STATEMENT OF REASONS
Board: Kate Brown (Chair)
Carolyn Wallace
Angela McKenzie
Hearing Date: 20 July 2018
Application to appoint substitute guardian - conflict with current guardian - breakdown in communication with providers of medical care - relationship detrimental to provision of medical care - order imposed for shorter term in contemplation of repair in relationship
Guardianship and Administration Act 1995
1. An application by EQN (applicant) for the appointment of a guardian for NN was heard by the Guardianship and Administration Board (“the Board”) on 20 July 2018.
2. The background to the application was as follows:
a.NN is a 75 year old man who is currently a resident at a Nursing home. He was admitted to the Royal Hobart Hospital on the 19th of June 2016 with a large right hemisphere stroke.
b.The Public Trustee was appointed as an administrator for NN on the 9th of September 2016, which remains in effect until the 8th of September 2019.
c.The Board had before it an application for guardianship from NN’s son, dated 26th April 2018.
d.The matter was initially set down for hearing on the 15th of June 2018 but was adjourned following an application for adjournment by EQN (via his solicitor).
3. Present at the hearing were:
·Ms Russell (Office of the Public Guardian);
·MK (General Manager);
·MC (Residential Manager);
·Mr Sam McCullough (solicitor for applicant);
·EQN (the applicant);
·NM (the applicant’s partner).
·Dr Ekins (GP- by telephone).
4. The Board had the following documents before it:
·Application for Administration
·A Health Care Professional Report of Dr Dunbabin dated 11th April 2018;
·Medical letter of Dr Dunbabin dated 28th March 2018;
·ACAT Myagedcare report dated 14th July 2016;
·HCPR of Dr Caroline Davis (psychologist) dated 19th July 2016;
·Letter of Report from Ms Elise Young , social worker, Royal Hobart Hospital dated 28th July 2016;
·Email from NC from the Nursing Home dated 6th July 2018;
·Emailed letter of LQ, advocate dated 3rd July;
·Email submission from Dr Toby Ekins dated 13/07/2018
·Statement from DN, the applicant’s ex-wife dated 3rd July 201;
·Statement from NNN the applicant’s brother dated 29th June,
·Statement of NNJ dated 4th of July, 2018;
·Public Trustee report of Mr Edward Kempa dated 9th October 2017
·Email correspondence between the applicant and QI, the care manager at the Nursing Home.
·Email submission from Mr Sam McCullough, Simmons Wofhagen
5. When assessing an application for the appointment of a guardian the Board needs to be satisfied of the matters in section 20 of the Guardianship and Administration Act 1995 (the Act); that NN:
is a person with a disability, and
is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to his person or circumstances
is in need of a guardian.
6. The Board must also observe the principles set out in section 6 of the Act, which legislate the functions conferred by this Act are to be performed so that the means is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; the best interests 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.
Is NN a person with a disability?
7. A Health Care Professional Report (HCPR) of Dr Dunbain provided to the Board in relation to NN, dated 11th April 2018, stated that NN had an acquired brain injury arising from a stroke.
8. The Board also had before it an historical HCPR from Dr Caroline Davis dated 19th June, 2016 consistent with this diagnosis.
9. The medical evidence was unchallenged at the hearing. The Board is satisfied that NN is a person with a disability within the meaning of the Act.
The HCPR of Dr Dunbabin states NN is unable to independently perform requirements for care at home and is unable to make executive decisions and has limited insight into appropriate decision making.
11. Dr Dunbabin stated NN had poor insight into physical capabilities or care needs and that a guardian is necessary to resolve future care and safety.
12. There was no dispute at the hearing about the need for NN to have a guardian. The primary issue for the Board to consider was not whether NN required a guardian but who was the appropriate guardian to be appointed.
13. 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. Most pertinent was the consideration of whether the applicant was in a position where he could fulfill the guardianship requirements required for NN.
14. The evidence before the Board disclosed a history of conflict between the applicant and the health care providers which has had a significant adverse impact upon NN’s care.
15. There was evidence before the Board about the resistance of the applicant, and other family members, to accept NN’s diagnosis, and to direct frustration towards health care professionals, to be intimidating and aggressive and to shout at staff and management of the Nursing home. There was evidence that several members of the family have continued to be obstructive towards nursing staff and himself which has impacted negatively on NN’s care.
16. There was evidence the applicant had cancelled or postponed medical appointments and there had been difficulties with arranging meetings with the family. In particular, there was evidence that the interference of the family with NN’s hygiene management was the likely cause of the chronic sacral wound NN suffered as a result of the family refusing the use of continence aids.
17. There was evidence about the family’s dissatisfaction with Dr Ekin’s prescribing practices. Dr Ekin stated his practices had been constantly questioned and he has been pressured to de-escalate NN’s antipsychotics and analgesia several times resulting in episodes of significant agitation.
18. The Board also heard evidence by telephone from Dr Ekins. Dr Ekins gave evidence about the dysfunctional nature of the relationship between himself and the family. Dr Ekins said that has impacted on the provision of care and decisions that have been made which have not been in the best interests of NN.
19. Dr Ekin gave evidence, which was accepted by the Board, that he had taken the wishes of the family into account when considering the administration of medication, but the impact of changing the medication had been detrimental on NN’s medical condition.
20. The animosity of the applicant toward Dr Ekin was evident through his counsel’s questioning during the hearing. There was further evidence of the breakdown in communication between the parties in relation to the family continually emailing Dr Ekin when he had indicated his preference for medical discussions is to meet in person. After hearing evidence from Dr Ekin the applicant indicated he now understood (but hadn’t previously) the reason for Dr Ekin not wishing to use email to discuss NN’s medical management.
21. Further material was provided to the Board during the hearing. The Board adjourned to consider the voluminous affidavit material. That document reinforced the conflict between the applicant and the providers of medical services, and the suspicion the applicant has towards the medical professionals and health care providers.
22. The Board took into account the evidence from NN’s advocate who noted that he would like the applicant to be appointed as his guardian and that he listens to his requests, is always there when he needs something and follows up on requests. This was balanced with the difficulties in the relationship between the family and health care professionals were referred to in the evidence of all the health care professionals.
23. During the hearing, the applicant conceded it was a reasonable conclusion that there had been a breakdown in communication between the family and the medical professionals.
24. The Board was of the view that the history of ongoing conflict between the applicant and his family members and the professionals providing medical and health care services warranted appointment of an independent guardian. An independent guardian will exercise its powers under the Act, impartially and will enable NN to receive the appropriate medical treatment his condition requires without those decisions being undermined by the emotions and attitudes of family members.
25. As explained at the hearing, the appointment of the Public Guardian as NN’s guardian does not prevent the applicant continuing to provide love and support and be involved his father’s care.
26. Frequently orders of this type are imposed for 3 years. The imposition of a shorter time period in this case took into account the possibility there could be an improvement in the quality of communication between the applicant and health care providers which may enable the appointment of a different guardian in the future given that presently the relationship is such that it is having an adverse impact on the medical care received by NN.
Conclusion
After hearing an application for a guardianship order in respect of NN 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
That the Public Guardian be appointed as NN’s guardian.
The powers and duties of the guardian are limited to decisions concerning:
i.consent to any health care that is in the best interests of the represented person; and
ii.providing consent to the provision of health services of the represented person.
That the order remains in effect to 19 July 2019.
0
0
1