NR
[2013] QCAT 662
| CITATION: | NR [2013] QCAT 662 |
| PARTIES: | NR |
| APPLICATION NUMBER: | GAA8024-13, GAA8025-13 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 2 December 2013 |
| HEARD AT: | Ipswich |
| DECISION OF: | Member Windsor |
| DELIVERED ON: | 16 December 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Public Trustee of Queensland is appointed as administrator for NR for all financial matters. 2. The Tribunal directs the Public Trustee to provide a financial management plan to the Tribunal within 4 months. 3. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 4. This appointment of the Public Trustee of Queensland remains current until further order of the Tribunal 5. The Adult Guardian is appointed as guardian for NR for decisions about the following personal matters accommodation, health and service provision. 6. This appointment is until further order of the Tribunal, is reviewable and is to be reviewed in two years. |
| CATCHWORDS: | Guardianship and administration matters for adults – Capacity - Conflict of medical opinion |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | NR SA Social worker DD Sister EE Sister FF Sister GG friend HH friend JJ friend, financial advisor KK friend |
REASONS FOR DECISION
Application
This is an application dated 2 September 2013 brought by FJ, daughter of NR for the appointment of an administrator and guardian for NR.
NJ and FJ were appointed under an interim order of QCAT dated 17 September 2013. The interim order appointed FJ and NJ as guardians (accommodation, service provision and health) and administrators (plenary) for a period of three months.
Background
NR is a 67 year old professionally qualified man who resides at ZZ Aged Care facility on the Sunshine Coast Queensland.
NR was living independently in the Community at the YY university until 10 August 2013.
He experienced a health crisis resulting in his admission to hospital for acute care.
NR’s received treatment of two life threatening illnesses, namely pneumonia and VRE (Vancomycin Resistant Enterococci).
He was admitted to the Ipswich hospital on 10 August 2013 – 1 September 2013 and then readmitted on 2 September 2013 until 20 September 2013.
From the Ipswich hospital he was moved to the Boonah hospital on 20 September 2013 and from there he moved to ZZ Aged care facility on 30 October 2013 where he was still residing at the date of the hearing.
NR was divorced 25 years ago and has two children, NJ who currently lives in P but who is employed in W and a daughter, FJ who lives in Q.
Neither NJ nor FJ attended the hearing. The Tribunal was advised that family discord was the reason as well as the difficulty NJ experiences in communicating from his remote work location.
NR has a diagnosis of muscular dystrophy. NR stated that he had been told of his diagnosis about 6 years ago.
NR is also diagnosed with diabetes mellitus Type 2 NIDDM.
NR has an ACAT Assessment for high level Residential aged care services dated 20 September 2013 undertaken whilst he was an inpatient.
At the time of the making of the interim order a general power of attorney dated 11 July 2009 was in place which appointed NJ as attorney for NR for financial matters only.
This power of attorney was overtaken by the making of the interim order which will expire on the 17 December 2013.
Today’s application proposes the appointment of FJ and NJ as guardians and administrators to act jointly and severally.
Following the making of the interim order, it now appears that neither FJ nor NJ is seeking appointment.
Despite the making of the interim order, it appears that NR would not cooperate with FJ as administrator and refused to provide her with financial details.
It appears that the relationship with their father has now deteriorated to the point that NJ and FJ desire no involvement.
NR attended the hearing in a wheel chair having been driven to the hearing in Ipswich from by a friend. A large number of NR’s supporters including his financial advisor, church and other friends came to the hearing.
All were very passionate on NR’s behalf. Some provided medical and legal opinions, references and comments to the Tribunal.
In addition NR was assisted by his sisters DD, EE and FF.
The Tribunal understands that the resumption of contact with his sisters is a recent development.
NR is opposed to any intervention by way of the appointment of substitute decision-makers. He disputes that he lacks capacity for decisions of a personal or financial nature.
He has sought legal advice and obtained a further medical report from his General Practitioner.
NR is opposed to remaining in his current accommodation and wishes to reside in the community.
NR has retained Ms Christine Matsinger of McColm Matsinger Lawyers who did not attend the hearing, or seek to attend by teleconference, but forwarded a copy of Dr Bohlscheid’s letter and report.
By telephone on 27 November 2013, Ms Matsinger advised the Tribunal that she has prepared an Enduring power of Attorney for NR (appointing his sisters), but had not advised its execution until she received further capacity information.
She indicated that, in view of Dr Bohlscheid’s letter, whether the matter should be adjourned. No application for an adjournment was received, the Tribunal was resolved that it was in NR’s best interest for the matter to proceed.
Capacity
The first issue in this case is to establish NR’s capacity for decisions regarding financial and personal and health matters. Capacity is defined in Schedule 4 of the Guardianship and Administration Act 2000 (the Act). Before the Tribunal can consider any need for an appointment under section 12 and the appropriateness of any proposed appointee under section 15 of the Act, it must be satisfied that the adult lacks capacity for the matter.
NR is presumed to have capacity in accordance with section 7 of the Act and General Principle 1 under Schedule 1 of the Act. Unless there is sufficient evidence to rebut that presumption, it must stand.
Capacity for a person for a matter means the person is capable of:
(a) understanding the nature and effect of decisions about the matter; and
(b) freely and voluntarily making decisions about the matter; and
(c) communicating the decisions in some way.
Can NR understand the nature of decisions about financial and personal health matters?
At the hearing NR was able to respond reasonably to questions put to him and gave qualified accounts of events and historical matters. He was selective and not forthcoming about matters he felt were adverse to his interests.
Competing medical opinion
NR displayed reluctance to give full details of his health and accommodation circumstances. Evidence from medical records was that NR was admitted to Ipswich hospital for acute care on the 10 August 2013. He self-discharged against medical advice on the 1 September 2013. He was readmitted on the 2 September 2013 and remained an inpatient at Ipswich and at Boonah hospital until 30 October 2013 when he was discharged to ZZ Aged Care Facility.
NR advised the Tribunal that he admitted for treatment for pneumonia and VRE (Vancomycin Resistant Enterococci). The Tribunal notes that without treatment, both are potentially life threatening illnesses.
The Tribunal considered the medical report of hospital doctors, Dr Katie Phillips, Dr Chen, a neuro-psychiatrist and Dr Sinha as well as that of Dr Bohlscheid a general practitioner. In addition the ACAT assessment comments were noted. These were prepared by a registered nurse. Dr Katie Phillips examined NR on the 12 August 2013 in the Ipswich hospital
Her opinion was that NR’s ability to make decisions was compromised as follows. She states that he ‘has progressive decline, lack of insight executive dysfunction and an aggressive response to stress, non-compliant and isolated’.
She reports the results of cognitive testing to be Mini Mental state examination (MMSE) of 8/10 and Mental State Examination (MSE) of 23/30. She refers to a neuropsychologist report dated 29 August 2013. (MSE is a systematic appraisal of the appearance, behaviour, mental functioning and overall demeanour of a person. In some ways it reflects a “snapshot” of a person’s psychological functioning at a given point.)
Her conclusion is that NR had ‘limited ability in making decisions and that he had impaired judgment and lack of insight’.
In support of her opinion she refers at paragraph 5.3 of her report to NR’s recent departure from the Ipswich hospital against medical advice, which resulted in him being readmitted the next day for on-going care.
Her report incorrectly refers to NR’s daughter as having assisted NR to leave the hospital but the Tribunal has been advised in the hearing that NR’s sister DD assisted NR to leave hospital.
Dr Phillips concludes that NR has no capacity for complex decision making in the areas of finance and personal health care and lifestyle and accommodation.
The neuro-psychiatric report (contained in hospital chart) is dated 29 August 2013.
It states that NR refused any formal cognitive testing at that time.
At the time of this clinical interview with neuropsychiatric, Dr Chen, NR had been an inpatient for 19 days.
In the report Dr Chen comments that in response to the question ‘What you would do if you had a fall at home’ he stated: ‘I will never have a fall, I always plan things. If I think I am going to slip, I slow myself down’.
Further into the interview NR advised the doctor that he leaves his bedroom door open at night for ‘safety purposes’ so he ‘can yell out for help if he needs to’. He also stated that: ‘if his belongings were stolen (because the door was open) that they get stolen’.
NR indicated in this interview, that he was not recording his blood sugar levels as this was ‘not necessary’.
Dr Chen concluded that the patient had limited understanding and insight into potential risks if he was to return to his previous living environment.
Dr Chen conferred with Dr Sinha who remarked that ‘the patient has no insight to make decisions about a place of residence. He is unable to sign discharge against medical advice’.
Dr Sinha recommended an ACAT assessment with view towards placement.
The ACAT assessment dated 20 September 2013 advises that NR has both muscular dystrophy and diabetes mellitus Type 2 NIDDM.
The recommendation by the ACAT Assessor was for Residential aged care service at high level care.
The ACAT assessor commented on Activity limitations for NR which were in the areas of: self-care; movement activities; moving around places at or away from home; health care tasks and transport activities involved in social and community participation and that he required assistance with domestic assistance, meals and home maintenance. Despite this list, NR advised the assessor that he obtained assistance only for the transport and domestic assistance, and home maintenance.
The ACAT assessor recommended that NR receive assistance from formal services in all areas except communication.
The ACAT assessor also commented that
NR denied memory loss and aggression contrary to hospital records. She noted that NR had multiple outbursts of aggression, non-cooperation, and at risk behaviour. NR is wheelchair dependent and requires hoist transfers, though he attempts to transfer from bed to wheelchair independently without the hoist.
The ACAT assessor also commented that NR indicated that he
prepares his own meals and attends the local tavern on campus for meals. He has his shopping delivered. He attends the dentist regularly. He denied continence issues but has a history of constipation for which he take laxatives when required.
NR’s daughter reported as part of the ACAT intake,
that he has been incontinent of urine and faeces in his unit due to his inability to access his bathroom. She also reported that he is cared for in isolation whilst in hospital due to his VRE status.
The Tribunal found consistency in the reports of Doctors Phillips, Chen and Sinha and that of the ACAT assessor who treated NR in hospital.
Dr Bohlscheid, a general practitioner at Boonah disagrees with the other Doctors’ reports. She states that she has known NR for three years. Her report dated 26 November 2013 concludes that NR has capacity for complex financial and personal health and lifestyle decisions.
Dr Bohlscheid wrote to the Tribunal on the 26 November 2013 stating that she had conducted preliminary testing in which NR performed well regarding judgement and reasonable well in the MMSE scoring 20/25. She is requesting further assessment of “higher order cognitive function”.
Dr Bohlscheid’s opinion is qualified as she states at paragraph 9 that she would like ‘further clarification of the above’ i.e. her assessment that NR has simple and complex financial and personal health and lifestyle and accommodation decision making capacity. Her report is inconclusive in this regard.
She incorrectly states at paragraph 4.4 that NR was subject to an ITO (Involuntary Treatment order.)
He was however kept in isolation in hospital due to the VRE status. She does not refer to this illness.
Her report states that she has no other health professionals’ reports available to her (at paragraph 4.7 of her reports). It is therefore unclear as to how much of NR’s recent medical history was available to her. In particular the hospitalisation details, his self-discharge and the ACAT report. She was not available for comment at the hearing.
Dr Phillips examined NR in the hospital setting. They were not known to each other and she supported her conclusions by reference to current events: that NR received in-patient treatment for serious illnesses over a period of 23 days; that he was referred for psychiatric testing, the self-discharge from hospital against medical advice and subsequent readmission one day after his self-discharge.
The ACAT assessment reflects NR’s reluctance to accept that his health management required on-going co-ordination and supervision. His lack of insight into this fact is a serious concern and is an indication to the Tribunal of the failing executive function as remarked upon by Dr Phillips.
The means by which NR obtained help to leave hospital is also concerning calling into question his capacity.
In determining if a person has capacity for a decision; the process involves the bringing to bear of the information that is needed to make the decision. The use of information in a decision-making process may not necessarily always be conventional but should be at least rational.
a) NR’s decision to leave hospital against medical advice may be seen to lack rational thinking and the weighing of consequences.
b) Likewise his discussion with Dr Chen, where NR indicated that he thought an acceptable way of managing his needs in the community was for him to leave his door open (in the university accommodation) and call out if help. His comment that he was not bothering with taking blood sugar levels stating that it was unnecessary confirms for the Tribunal that NR’s insight into his health care needs and his executive function is declining as is Dr Phillips view.
c) All of these decisions require the ability to make choices with regard to the long term consequences.
The Tribunal is satisfied that no further cognitive testing is necessary as requested by Dr Bohlscheid as the events described together with the other medical reports and ACAT assessment indicate that NR does not understand the nature and consequences of decisions about personal and health matters.
The Tribunal finds that NR lacks ‘an understanding of the nature and effect of decisions about the matter’ for personal decisions in the areas of health, accommodation and service provision.
Is there a need for guardian?
Section 12 of the Act provides that before the Tribunal can appoint a guardian to make personal decisions for the adult with impaired decision making capacity, the Tribunal must determine that there is a need for a decision in relation to the matter and that without an appointment the adult needs will not be adequately met or the adult’s interests will not be adequately protected.
He has limited insight regarding his hygiene and self- care needs. He is at risk in regard to consistency of medication and treatment use.
He may require services in place to provide support (including with cleaning and home maintenance), but has poor appreciation of his needs, and the consequences of decision making or lack of decision making.
NR is unhappy in his current home and wishes to move.
Previously it is said that he chose this facility. But NR does not recall having made this choice. It is likely that frequent moves are costly to the adult. The Tribunal accepts that NR may have changed his mind about this facility but also that the will be limitations upon the choices available to him.
A substantial deposit by way of an accommodation bond has been paid. Relocation must be carefully considered with view to NR’s other requirements. He wishes to be near his sisters, hydrotherapy treatments, his church and university.
One sister would like NR near her so she does not have to drive.
As NR requires a hoist transfer, NR has shown himself to be unrealistic in what accommodation choices he can make as he attempts to transfer without the hoist. The ACAT assessment concludes that he required numerous support services including in the area of movements and mobility.
According to the ACAT assessment, Service provision is also necessary to maintain a hygienic and safe environment given his compromised health status. NR can sometimes place himself at risk by his lack of insight into these matters.
NR is now estranged from his children, so is without their support at present. He has the support of his sisters but it is unclear as to how much detail they know of NR’s heath and other needs.
The fact that DD assisted NR to leave hospital without a medical discharge and presumably without some plans for how he would manage back at his accommodation is of concern. It also shows lack of appropriate planning and a lack of appreciation of his precarious health and the complexity of NR’s needs.
The Tribunal determines that the adult does not have capacity to make decisions about the matter and that there is a need for a number of decisions in the immediate future and that without an appointment the adult needs will not be adequately met or the adult’s interests will not be adequately protected.
Who should be appointed as guardian?
Section 15 of the Act states the appropriateness considerations of proposed appointees. In the case as there is family conflict exists as a result of the events of the last few months and the involvement of QCAT.
There is evidence of self-neglect, impaired insight and impulsive decision-making and that many of NR’s close supporters appear to be re unaware of the true facts and circumstances of his position.
Parties at the hearing have expressed strong views about the conduct and motives of other family members, such that it is unlikely a workable relationship could be established and family could put aside their differences.
Section 15 of the Act requires parties to work cooperatively and communicate. The Adult Guardian is the guardian of last resort but in this case, family circumstances require their appointment in the adult’s interests.
It is therefore unlikely that a family member could be appointed and carry out the role with the appropriate insight.
For this reason, the Tribunal has decided that the Adult Guardian is available, independent and competent to carry out the role. The Adult Guardian is able to apply the general principles and place NR’s interests first. They are required to act impartially and fairly in NR’s interests. No discernible conflict can be seen.
The benefit of the Adult Guardian is that they will be accessible to NR and family and friends. They can take account, of the adult wishes and interests with objectivity and insight. They are able to take account of all opinions and communicate with family and friends within privacy guidelines.
Orders have been made accordingly.
Does NR lack capacity for financial decisions?
The medical report of Dr Phillips states that NR does not have capacity for simple or complex decision making. She states that he has progressive decline, lack of insight, executive dysfunction and an aggressive response to stress, is non-compliant and isolated.
She reports the results of cognitive testing to be Mini Mental state examination (MMSE) of 8/10 and Mental State Examination (MSE) of 23/30 on the 12 August 2013.
Dr Bohlscheid’s opinion is the opposite. She tested him on 21 November 2013 and he scored 20/25 on the MMSE test. She would like further cognitive testing. Her conditional view is that NR has capacity for simple and complex financial matters.
The Tribunal has regard to both conflicting medical opinions based on quite similar test results but also to NR’s responses and conduct in the hearing, in hospital and prior to the hospitalisation.
NR had good recall of his assets but showed a lack of judgment when he discussed how the assets are being managed.
He was unconcerned that he did not know what fees the financial planner was charging. He stated that he did not know what he was being charged at ZZ, but that it was too expensive.
The Tribunal considers based upon the ACAT assessment, that NR’s opinion is based on his unrealistic views of what he can achieve without support. It may well be that his care needs exceed what he thinks is reasonable.
NR did not acknowledge what his care needs were likely to be quite costly and unlikely to diminish over time.
He stated to Dr Chen that he was going to get an electric bed but that he had not paid for it.
The Tribunal formed the view that the changes required in NR’s life were for the future and did not have to be considered now. In any event the discussion about NR’s lack of insight applies equally to his decision-making in the area of finances. He seems incapable or unwilling to address these matters; but on the other hand has blind faith in the financial adviser.
NR would not cooperate with his daughter who was appointed under the interim order. This is significant as it has placed his financial affairs at risk. To what extent the conditions of the interim order have been complied with is unknown as FJ was unable to proceed in accordance with her appointment, directly as a result of NR’s obstruction.
The Tribunal does not consider that further testing or a delay to allow this to occur will assist in deliberations about NR’s capacity for financial decisions. The cognitive testing is not the only consideration. NR’s at times irrational conduct and lack of insight makes him financially vulnerable and places his considerable assets at risk.
In summary NR has shown poor judgement and ability to plan. He holds unrealistic views of the true costs of items, has faith in others to decide major financial matters unsupervised. He does not appear to be actively managing his assets. He was unaware of some expenditure such as for accommodation other then it was ‘too much’.
His cognitive impairment is not such as to deprive him of the capacity to make major financial decisions but he has impaired understanding of the nature and effect of decisions. There is an impairment of his ability to make decisions freely and voluntarily because of his lack of insight and vulnerability to financial abuse.
Based upon these findings, the Tribunal has determined that the adult does not have capacity to make decisions about a matter in relation to complex financial matters.
Is there a need for the appointment of an administrator?
Need is established if the Tribunal determines that the Adult is likely to do something which involves unreasonable risk to the adult’s health, welfare or property and that without appointment the adults needs will not be met or the adults’ interests will not be adequately protected.
NR is aged 67 and has a diagnosis of muscular dystrophy and diabetes. He has complex financial arrangements and substantial assets.
There are significant and costly decisions to be made in regard to accommodation and service provision. He has a number of serious health issues with financial impost attached to these. He has declining health together with increasing dependency.
He has recently undergone a long period of hospitalisation and treatment for life threatening illnesses. His physical health is compromised by these events and will. His family support is fractured by recent estrangement from his children.
NR showed fatigue in recalling and listing all his financial details, but gave the Tribunal a good account of his asset spread. His assets total over one million dollars spread across real estate, a Superannuation fund, cash at bank and shares. He could not name the shares but said they were in a trust.
NR indicated that he had absolute faith in his financial adviser who brought NR to the hearing. The adviser participated vigorously in the hearing expressing his views as a strong advocate for NR. The adviser asked questions about the fees which would be charged by the Public Trustee were they to be appointed. He supported NR’s right to self-discharge against medical advice disputing that NR needed to do anything except ‘just walk out’.
However, NR was unable to say what fees were charged by the financial adviser. NR was dismissive of this question when asked by the Tribunal.
After some questioning the financial advisor stated that his fees were 1 – 1.1 % of the asset value. He then stated that his fees were in the region of $4,000- $4,500 per year.
NR stated that he wished to buy a house closer to his sisters; in particular DD who would help him. It appeared to the Tribunal that his sisters were of similar age to NR and that such plan may have some obstacles.
No plans for how this arrangement would be supported and paid for were put to the Tribunal.
The Tribunal was informed that a deposit had been paid on an accommodation bond at ZZ. This matter will need to be resolved as NR has expressed a strong dislike of this location.
NR has on-going care needs such as hydrotherapy as well as other pursuits he wishes to pursue such as continuing study and church attendance.
However, NR appears to encourage the assistance of people who will agree with him, though his reasoning has at times been shown to be is unsafe and puts himself and others at risk such as with his hospital discharge.
NR appears to encourage like-minded supporters, and reject anyone who challenges him. This conduct makes him vulnerable to inappropriate influences from ill-informed persons who fail to appreciate the complexity of his needs.
The Tribunal is satisfied that NR’s affairs are substantial and complex and his grasp upon them is slipping. He is vulnerable as a result of his lack of insight into the consequences of his choices as evidenced by recent events and his absolute and unquestioning trust placed in his financial adviser.
For these reasons, the Tribunal determines that there is a need for a decision in relation to the matter and that without an appointment the adult’s needs will not be adequately met or the adult’s interests will not be adequately protected.
The Tribunal determines that the need for the appointment of an administrator has been established.
Who should be appointed as administrator?
The Tribunal considered the following possible appointees:
The Public Trustee of Queensland, NJ and FJ and other family have been considered.
FJ and NJ have previously demonstrated a supportive attitude to their father but do not put themselves forward. The appointment of FJ and NJ under an Interim order was unworkable due to the frustration of the administrators by NR’s non-cooperation.
Unfortunately the Tribunal was not given the benefit of directly hearing from NJ and FJ as to their position on the issues discussed here, so it is difficult to assess their views on their father’s declining health as a factor in managing his finances and their suitability for appointment.
DD and the other sisters have become involved recently with NR, but it was evident in the hearing that they only appear to have a superficial understanding of NR’s requirements and appear willing to do as they are told by NR which the Tribunal feels is not in NR’s best interests.
Additionally, a conflict exists between family members demonstrated in the hearing and the fact that FJ and NJ declined to attend.
It is important that whoever is appointed as administrator can place NR’s interests ahead of their own which is more than simply carrying out NR’s directions though the general principles require that he be consulted in decision- making and that the least intrusive decisions be made.
It is essential that an administrator can carry out their duties for the benefit of the adult. For this reason an independent appointment is required.
In these circumstances, the Tribunal is of the view that an independent administrator would be better placed to liaise with all interested parties, assess the relative merits of options for decisions on financial matters and make decisions that best meet the adult’s needs.
In this respect the Public Trustee of Queensland is an independent decision maker and has extensive skills and experience. The Public Trustee is considered the most appropriate appointee as administrator and orders are made accordingly.
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