NSO (Guardianship) - [2012] TASGAB 41

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

NSO – Application for the appointment of a guardian by Mental Health Services

Neutral citation: NSO (Guardianship) [2012] TASGAB 41

REASONS FOR DECISION

Anita Smith (President)
Catherine Gavan (Member)
Lindi Wall (Member)

Date of hearing: 15 November 2012

Guardianship – dependent personality disorder as a disability – effect of disorder on person’s ability to make and effect reasonable decisions about health care – limited need for a guardian to make health care decisions

Guardianship and Administration Act 1995 s. 3, 6, 20, 21

NSO is a 32 year old unemployed man who first came to the attention of the Board on 4 September 2012 when Dr. MW sought an emergency guardianship order to prevent him having treatment for arthritis with an anti-tumor necrosis factor (TNF) injection which Dr. MW indicated was unnecessary and potentially harmful, but which NSO’s mother was apparently seeking on his behalf. Dr. MW indicated that NSO was unable to resist his mother’s influence with respect to health matters and that the relationship between them was marked by Munchausen’s by Proxy. The Board granted the order. Reasons for that decision were produced on 1 October 2012.

On 11 September 2012, the Board received an application for the ongoing appointment of a guardian. In assessing an application for the appointment of a guardian pursuant to section 20 of the Guardianship and Administration Act 1995 (the Act) the Board must be satisfied that NSO is a person with a disability, that by reason of that disability he is in capable of making reasonable judgments about his person and circumstances and that he is in need of a guardian. This application was limited to the issue of health care decisions.
This application was heard by the Board on 15 November 2012 and the following persons attended:
NSO
Ms. Sarah Campbell - NSO’s legal representative
Dr. MW – Applicant
KM – Mother
QO – Father
DO – Sister
Ms. Lisa Warner – Public Guardian
At the hearing the Board and NSO (through counsel) had access to the following documents:
Background documents:
Letter from Dr. SH to Dr. AF dated 9 September 2011
Letter from Dr. MT to Dr. MA dated 20 September 2011
Letter from Dr. MR to Dr. JI dated 16 February 2012
Consultation notes by Dr AL on Monday 20 February 2012
Letter from Dr. JZ to Dr. RC dated 11 May 2012
Letter from Dr. MM to Dr. JI dated 16 May 2012
Consultation notes by Dr. RC on Tuesday 22 May 2012
Letter from Dr. SHa to Dr. RC dated 4 June 2012
Hobart Clinic discharge summary by Dr. MD dated 10 August 2012
Letter from Dr. MW to to Dr. MT dated 20 August 2012
Email from Dr. MT to Dr. MW dated 27 August 2012
Emergency order documents:
Application for emergency order dated 4 September 2012
Report by Public Guardian dated 21 September 2012
Board’s reasons for decision for emergency order dated 1 October 2012
Application:
Application by Dr. MW dated 11 September 2012
Health Care Professional Report by Dr. MW dated 11 September 2012
Documents arising from the application and the investigation:
Letter from KM dated 24 October 2012 with attachments*
Report by GAB Investigator dated 7 November 2012
Letter from Dr. RC to GAB dated 12 November 2012
*Attachments to KM’s letter included:
Letter ‘To whom it may concern’ from Dr. EA dated 9 December 2011
Handwritten note by NSO dated 2 August 2012
Handwritten notes (or extracts) headed ‘NSO’s Notes’ undated
Letter from Dr. SHa to Dr. RC dated 4 June 2012 (same as above)
Letter from Dr. GJ to Dr. MZ dated 22 December 1999
Medical imaging report dated 25 January 2000

Does NSO have a disability?

The applicant, who is a psychiatrist with Mental Health Services, completed the Health Care Professional Report. That report stated that, in Dr. MW’s opinion, NSO has a psychiatric disability called Dependent Personality Disorder. Dr. RC in his letter dated 12 November 2012 stated that NSO is suffering from Munchausen’s by proxy.
These diagnoses arise after a complex history of numerous practitioners attempting to confirm a specific diagnosis for the nature of NSO’s condition. The Board had the following historical information before it with respect to the question of whether NSO is a person with a disability relevant to his decision making abilities:
·Consultant Psychiatrist, Dr. MR, reported on 7 February 2011 that NSO:
“suffers from schizophrenia (as evident by formal thought disorder, paranoia, auditory halluncinations and multiple negative symptoms). He initially became sick in 2007 but there was a lot of confusion regarding his diagnosis. He saw several different psychiatrists and was diagnosed, among others, with Major Depressive Disorder, Social Phobia, Dysmorphic Body Disorder, etc.”
·Clinical Director of Mental Health Services, Dr. MM, on 16 May 2011 indicated a range of psychiatric symptoms and concluded:
“So on balance while it remains uncertain a diagnosis of schizophrenia with mainly negative symptoms seems the most likely diagnosis but this is by no means the final matter.”
·Dr. SH’s report dated 9 September 2011 noted that in 2008 Dr. Robert Burgess has diagnosed NSO with depression and schizoaffective disorder and also noted a previous unattributed diagnosis of Asperger’s disorder. Dr. SH concluded that NSO’ diagnoses include dysthymia and body dysmorphic disorder. He considered that NSO’s symptom profile is consistent with schizophrenia.
·Psychotherapist, Dr. EA’s report in December 2011 noted that NSO’s mental health was adversely affected by sleep deprivation.
·In the discharge summary dated 10 August 2012 from the Hobart Clinic Dr. MD noted that: “a diagnosis of schizophrenia was most likely”.
At the hearing, Dr. MW acknowledged that NSO’s diagnosis remains the subject of significant debate. He indicated that all medical reports note that NSO has a mental health problem of some nature and his long involvement with mental health services would indicate that NSO has a mental illness which has not responded by a large number of interventions over a significant period of time.

Dr. MW indicated that in terms of NSO experiencing a ‘restriction or lack (resulting from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function) of ability to perform an activity in a normal manner,’ as disability is defined in section 3 of the Act, he lacks the ability to make independent decisions, has concerning worries about his physical health, he is socially isolated and finds it difficult to manage his life in the way in which he would choose. According to Dr. MW, he delegates making decisions about his health to others and his dependency means that he is constantly seeking approval from others. Dr. MW also noted that NSO has very significant anxieties about his physical health to the extent that he has stopped engaging in physical activities because of that anxiety and this has prevented him from being able to lead a normal life.

Counsel for NSO indicated that NSO did not dispute the diagnosis of having a dependent personality disorder. She indicated that he receives a Disability Support Pension because of his disability. NSO indicated that he qualified for that benefit on the basis of a diagnosis of schizoaffective disorder. Counsel indicated that NSO accepted that he is a person with a disability for the purposes of the Act, not on the basis of a specific diagnosis, but because he experiences some restriction or lack (resulting from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function) of ability to perform an activity in a normal manner.

KM stated that NSO has had a difficult time and feels alienated from society. She disagreed with a diagnosis of dependency, but described instead that he has behavioural and anger management problems. She outlined his physical injuries and concerns and said that these cause him pain which affects his behaviour. She denied that he seeks approval (a point supported by his sister) and stated that his dependency on his family comes from the alienation from society and services. She described his history of tertiary study and his voluntary work for charities, indicating that he has abilities that mental health services have overlooked when diagnosing NSO. She was critical of the lack of a consistent diagnosis and the changes in his treatment. Ultimately, KM responded that she does not know whether NSO has a mental illness and she is unlikely to know until he gets physically well.
The Board was satisfied that NSO is a person with a disability as defined in section 3 of the Act.

Does NSO lack the capacity to make reasonable judgments about his person and circumstances?

Because of the limited scope of the application, the Board’s assessment of NSO’s capacity was limited to his capacity to make decisions with regard to medical treatment. This was discussed with regard to two main issues, firstly his ability to consent to or refuse treatment for a mental illness and secondly his capacity to consent to extensive assessments and treatments for an arthritic complaint arising from an injury he sustained in December 2010.
Dr. MW’s written report indicated that NSO is susceptible to influence and is unable to oppose his mother’s will. In response to the written question:
“Can the person understand the nature and effect of medical treatment?”
Dr. MW wrote:
“No – I believe he has understanding but cannot express his will over his mother’s.”
In the hearing, Dr. MW drew the Board’s attention to a common theme in all reports supplied to the Board that indicated the difficulties that practitioners experienced due NSO’s mother’s intervention in his health care. Such statements included the following:
Dr. MR, February 2011:
“I found treating NSO quite difficult as he has poor insight into his condition and also because he has over-involved parents (especially his mother, whom I suspect is the force behind seeing so many specialists in the past). As NSO is quite a difficult case, I also involved Community Psychiatric Nurse, Jeanette Thomas, in NSO’s case and she spent many hours working with NSO. Between April and December 2010 she saw him forty times. She went way beyond the call of duty but despite this, there were constant complaints, mostly from NSO’s mother but also from NSO himself, about Jeanette’s involvement. I am not clear about the details but it appears that eventually the therapeutic alliance between NSO and Jeanette was broken and I do not believe the relationship can be repaired.”
Dr. MM, May 2011:
“NSO did say he was reasonably well and denied that he felt depressed. … His mother had a series of worries involving his social situation, isolation, his need for scrutiny in her view and her concern that he was not reliably taking his prescribed medication.”
Dr. SH, September 2011:
“NSO became visibly irritated when his mother spoke. We explored this and whilst his mother appears well meaning, NSO experiences her as being over involved and intrusive. ... NSO also requested to have greater independence from his mother which may allow NSO to essentially ‘sink or swim’ and possibly be more engaged and compliant with treatment. His mother may need psychological support to help her with giving NSO more independence.”
Dr. MT, September 2011:
“Things are a bit of a mess in terms of who is driving the process in terms of NSO’s parents interfering and who is the lead clinician. Certainly what I tried is to clarify is that I think NSO is competent to make decisions and his parents cajoling him will only alienate him. I think the bigger picture that needs to be clarified is who NSO wants to be his lead clinician and that NSO is competent to make his own decisions and that his parents should stand back.
Dr. AL, February 2012:
“Odd distant affect. ‘Squirrely’ with father who ‘suggests’ problems and recurrent statements of “you don’t walk right” and “you’ve had lots of problems” but when pressed on these is unable to give detail and son dismisses what is suggested. … I can see no reason why he does not go play golf (seems his parents have told him he should not “in case something happens to him”) and this approach may underpin his deconditioning. He certainly WANTS to play golf (and was a state champion at one stage).”
Dr. JZ, May 2012:
“Appointment made by father, accompanied by both parents today. Their description of events remains at odds with what NSO complains of. Mother had written a letter to me, posing as NSO – he provided me with that letter today (see scan).” - NSO and his mother confirmed at the hearing that she had written the letter in question.
Dr. MD, August 2012:
“He was seen regularly over the course of his admission and it was noted that he became more distressed and agitated after visits from his mother, in particular. The latter seemed to have a particular focus on her son’s sero-negative arthropathy. A family meeting was held with NSO and his parents which showed a strong focus on his mother’s desire for treatment for his sero-negative arthritis, in contrast she did not seem to appreciate the importance of having consistent treatment for his Schizophrenia. Because of her stance it was difficult to get NSO to agree to have a trial of depot anti-psychotic medication and he began to refuse nocte olanzapine.”
Dr. MT, August 2012:
“I remember that the two visits NSO and his parents had with me well as they were difficult. … I felt for NSO as he seemed to be dominated by an unfocused mother. … The consults were marked by NSO’s mother dominating the process and NSO taking a very passive and disinterested role.”
Dr. RC, November 2012:
“I agree that NSO is unable to resist his mother’s insistence on his having unnecessary medical interventions, tests and treatments. I have witnessed this several times when he and his mother have consulted me. He is indeed suffering from “Munchausen’s by proxy” and I fear this situation will continue without intervention on his part.”
Dr. MW considered that NSO’s inability to express his own concerns and his pattern of falling into line with his mother’s demands exceed a normal pattern where a young man may be reliant upon his mother for health advice and support. Dr. MW’s concern is that NSO submits to a significant number of assessments and treatments, some of which have serious side effects, not because he has demonstrated informed consent to those assessments and treatments, but because he is giving into his mother’s directions. The converse also applies, that NSO has a history of non-compliance with treatment for mental illnesses because of his mother’s discouragement of those treatments. Dr. MW described the relationship between NSO and his mother as being ‘Munchausen’s by proxy’ where KM is over-involved as a care giver and over emphasizes illness reporting.
NSO gave evidence that he is intelligent and can make his own decisions. He described being “mucked around” by doctors. He was upset to see his parents “bagged out” by Mental Health Services. Counsel for NSO noted that he loves his parents dearly. She noted that he has recently expressed his wish (whilst under the emergency guardianship order) that he did not want to proceed with the anti-TNF injections based on rational and intelligent considerations. She conceded that he may have difficulty making that decision in the presence of his mother. During the course of the hearing, NSO gave conflicting or ambiguous answers to questions about his level of physical impairment and his need for physical or psychiatric treatment.
KM found participation in the hearing very difficult. She displayed great difficulty in behaving appropriately in the hearing, muttering and sighing loudly when she heard statements with which she did not agree. Despite warnings, she did not have the ability to appropriately control her conduct. She spoke over the top of other persons and had difficulty giving direct answers to questions asked of her. She mentioned a number of times that she is a trained nurse. She keeps an encyclopedic knowledge of NSO’s medical history, his appointments and treatments which, together with her complaints about numerous practitioner’s failings, she spoke of at length.
When asked how her son would make decisions about medical treatment without her support, KM (and her daughter) answered: “He would fall in a heap”. She re-iterated the many failings of medical practitioners in their assessments of NSO and the failure of NSO to adequately describe his symptoms to practitioners. Her assertions as to the level of physical disability that her son experiences were frenetic. She is insistent that he has psoriatic arthritis, for which he should have an MRI scan and thereafter treatment with Enbrel (the anti-TNF injection). KM’s behaviour was dominant with respect to all parties in the hearing.
DO described NSO as being in denial about his physical illness and noted that he will tell practitioners that he is in no pain, but tell his family that he is in so much pain that he cannot walk. The family was firmly of the view that they are the only ones who see the true picture of his illness. She expressed frustration about the family being disbelieved about the extent of NSO’s physical disability. She disputed that NSO is susceptible to influence, saying that he is quite stubborn and frequently resists his mother’s wishes. She said that of statements that he is susceptible to his mother’s influence “Our life would have been a hell of a lot easier if that was the case.”
The Public Guardian reported that NSO had told Professor GJ that he had ‘zero pain’ and Professor GJ does not believe that he requires any form of treatment. In a report, the guardian noted:
“NSO was clearly on edge. He perhaps understandably was very irritated by all of the intrusion into his health care matters. As above, he doesn’t consider there is a problem. He doesn’t want any treatment. He doesn’t want any further assessment. He just wants to be left alone. He oscillates between accusing his parents of interfering versus becoming defensive or protective of them and saying that they are “only doing what they believe is right.”
The Board was satisfied that NSO is incapable, by reason of his dependent personality disorder and the resultant relationship with his family, of making reasonable decisions about his health care.

Is NSO in need of a guardian?

The application was limited to a need for a guardian to make health care decisions on NSO’s behalf. Dr. MW outlined that the range of psychiatric illnesses with which NSO has been diagnosed all require different treatments. There is a need, in his opinion to reach a firm diagnosis and treatment plan for his mental illness. The applicant also described a need for consistency in treatment of any physical illnesses.
NSO and his mother disputed the need for a guardian based on the fact that Dr. MW has seen NSO on an insufficient number of occasions to justify his statements. NSO made a similar criticism of the Public Guardian.
NSO’s family persisted in outlining grievances against medical practitioners and the Public Guardian in their dispute about the need for NSO to have a guardian. They re-iterated the fact that NSO is wholly dependent upon them for 24 hour care and support and the failings of any other service or practitioner to alleviate their burden. (Notably, these assertions tend to support the diagnosis of dependent personality disorder, although that was not their intent.)
Given the history given in the medical reports and the consistent pattern of NSO’s parents intervening in his medical and psychiatric care, the Board was satisfied that NSO is in need of a guardian to ensure a reasoned response to the need for medical assessment and treatment. In particular the Board noted that, when under the protection of a guardianship order and absent parental involvement, NSO had given intelligent and informed responses to the need for medical treatment. The Board considers that the appointment of a limited guardian will promote a consistent and rational approach to the provision of health care which is in his best interests although such appointment is contrary to his stated wishes.

Nomination of a guardian

The applicant nominated the Public Guardian. KM suggested a family friend called Father McCormick, but he had not consented to appointment and had not attended the hearing. The Board is satisfied that, by reason of the independence of the office, the appointment of the Public Guardian will be in the best interests of NSO.

Conclusion:
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 the represented person’s guardian.
That the powers and duties of the guardian be limited to decisions concerning consent to any health care that is in the best interests of the represented person and to refuse or withdraw consent to any such treatment.
That the order remains in effect to 14 May 2014.

Anita Smith Catherine Gavan Lindi Wall
PRESIDENT MEMBER MEMBER
24 December 2012

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NSO (Guardianship) [2012] TASGAB 41

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