NSO (Review Guardianship)
[2013] TASGAB 27
•29 November 2013
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
NSO – Application to Review a Guardianship Order by QO
NSO (Review Guardianship) [2013] TASGAB 27
REASONS FOR DECISION
Anita Smith (President)
Kim Barker (Member)
Wendy Hudson (Member)
Date of hearing: 29 November 2013
Guardianship – review - alternative nomination for guardian – eligibility of proposed guardian - role of this guardian is to attempt to reduce family member’s preoccupation with represented person’s medical conditions and treatment – independent guardian vs. longstanding family friend – whether Public Guardian’s delegate has acted satisfactorily under the order
Guardianship and Administration Act 1995 s. 6, 21
On 15 November 2012, the Board appointed the Public Guardian as guardian for NSO (the represented person) limited to making decisions about his health care. The represented person has been the subject of two previous decisions and statements of reasons were produced on 1 October 2012 and 24 December 2012 respectively. In 2012, the Board found that the represented person is a person with a disability, was by reason of that disability unable to make reasonable judgments about his health care and in need of a guardian. Counsel for the represented person and other parties confirmed at the hearing that, while the represented person is in the process of seeking re-assessment of his capacity with a view to a future review application, none of these grounds is under review in the current proceedings and that the only question before the Board is the identity of the guardian.
The represented person’s father made an application which the Board received on 12 September 2013. The basis of the application was the represented person’s family’s dissatisfaction with the Public Guardian’s delegate. The themes of their complaints are:
(a) That the guardian has not established a sufficient relationship with the represented person.
(b) That the guardian has selected a medical practitioner who the family consider inappropriate because of her hours of work and her inattention to the represented person’s medical complaints.
(c) The represented person’s health has deteriorated under the watch of the Public Guardian.
The applicant nominated an alternate guardian, HM. However, as HM was not available on the hearing date, they proposed DFD instead.
The hearing of the application to review the guardianship order was convened on 29 November 2013 and the following persons attended:
NSO
Sarah Campbell – Legal Aid Commission of Tasmania
QO – father and applicant
DO – sister
Anne Perks – Office of the Public Guardian
DFD – nominee for guardian
QM – family friend
Lee Perry – GAB Compliance Officer
The eligibility of the nominated guardian:
In assessing DFD’s eligibility for appointment as a guardian the Board must take into account the following factors:
(a) will he act in the best interests of the represented person, and
(b) is he in a position where his interests conflict or may conflict with the interests of the represented person, and
(c) is he a suitable person to act as guardian of the represented person?
In determining whether DFD is suitable to act as a guardian of a represented person, the Board must take into account –
(a) the wishes of the represented person, and
(b) the desirability of preserving existing family relationships, and
(c) the compatibility of DFD with the represented person, and
(d) whether DFD will be available and accessible to the represented person so as to fulfil the requirements of guardianship.[1]
[1] Section 21 Guardianship and Administration Act 1995
DFD has been a family friend and neighbour for 30 years. In a written consent to appointment he stated that:
“I am a retired Civil Engineering Assistant and spent forty years with Engineering Consultants and Councils where I was responsible for major design works.”
He stated to the Board that he had limited understanding of the role of a guardian; however he hoped he would take a common sense approach. He stressed a “consensus model” of decision making and acknowledged that the represented person would have input to the decision. DFD said he may have to “trust [his] own judgment” in light of conflicting medical opinions. DFD alluded to having had experience of complex medical issues in his personal life.
The background to this application is a highly conflicted situation where the represented person’s family members believe that he has a serious arthritic condition that potentially disables him from normal daily activities, but most medical advisers deny that there is any condition that requires treatment. In the December decision of the Board, the Board described the relationship between the represented person and his mother as being characterised as Munchausen’s by proxy. At that time, the Board was satisfied that there was a need for a guardian because:
“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.”
The Board did not get an impression that DFD had been thoroughly or impartially briefed on the reasons why the represented person has a guardian. The complaints by the applicant about the Public Guardian showed that the represented person’s parents had not abated in their attempts to have him treated. The Board considered that DFD may be somewhat overwhelmed by the pressure to submit the represented person to the same round of assessments and treatments (or to resist such interventions) that lead to the making of an emergency guardianship order and the guardianship order. In this respect, the Board could not be satisfied that his “common sense” approach and the attempt to build consensus would be sufficiently robust in this circumstance. Without a more robust understanding of (i) the circumstances that lead to the making of an order; (ii) the medical and psychological complexities of the represented person; (iii) the complex, dysfunctional nature of the relationships between the represented person and his family; and (iv) the role of a guardian, the Board could not be satisfied that DFD will act in the best interests of the represented person.
The Board was not concerned that DFD is in a position where his interests conflict or may conflict with the interests of the represented person, except to the extent that his longstanding friendship with the represented person’s family might colour his view about the represented person’s need for assessments and treatment.
In terms of DFD’s suitability to act as the guardian of the proposed represented person, the Board noted that at the commencement of the hearing, the represented person through counsel indicated that he was “neutral’ to the application and had no wishes to express. However, having heard his father read out a prepared address to the Board, he told the Board (contrary to his instructions to counsel prior to the hearing) that he wanted DFD appointed as his guardian. After a brief adjournment, counsel confirmed his wish to have DFD appointed. The Board could not be certain that either sentiment was a genuine expression of his wishes, but considered that the behaviour was an example of the very complex dynamic that exists between the represented person and his family.
In assessing DFD’s suitability for appointment as the guardian, the desirability of preserving existing family relationships has an unusual application in this circumstance. At the hearing, the appointment of DFD had unified family support, which one would normally assume would preserve existing family relationships. However, medical reports would suggest that the existing family relationships (or the extant dynamics in those relationships) are not working in the represented person’s best interests. In this circumstance, the role of a guardian is important in creating some distance between the represented person and his family members, particularly in relation to their preoccupation with his medical conditions and treatment. An independent guardian will more easily create and maintain that distance than a person who has been a friend of the family for 30 years.
When considering whether DFD would be compatible with the proposed represented person, the Board observed the changeability in the represented person’s wishes (as noted above) and considered that DFD’s compatibility with the represented person might suffer the same changeability.
The Board accepted that DFD, being retired, will most likely be available and accessible to the proposed represented person so as to fulfil the requirements of guardianship, but had concerns that the intensity of the contact between the current guardian and the NSO family (discussed below) may go beyond the capacity of a well-meaning volunteer.
For the reasons set out above, the Board did not consider that DFD met the eligibility requirements for appointment as a guardian.
The role of the Public Guardian:
With the rejection of the nominated guardian, the Board acknowledges that the appointment of the Public Guardian will continue until the expiry of the current order.
A review process is not a grievance process; however the Board acknowledges that the application arose because of the applicant’s dissatisfaction with the work of the Public Guardian.
The Board read the applicant’s submissions and correspondence from the NSO family since the order was made. The Board also heard the applicant’s prepared statement in full at the hearing. The Board considers that these complaints arise from the same fundamental issue that underpins this case: that the represented person’s family will not rest in their attempts to have the represented person assessed and treated for a medical condition even though successive medical practitioners have not agreed with the need for such assessments and treatments of the purported medical condition.
The Public Guardian’s delegate reported prior to the hearing that perusal of the file showed:
·75 pages of case notes generated by the appointment as guardian
·Over 50 letters to medical practitioners, psychologists, allied health staff the represented person and his parents
·Several reports and results of medical tests
·Two case conferences between the Public Guardian staff and medical practitioners
·Three meetings with the represented person’s parents, two of which were attended by the represented person
·Over 20 phone calls recorded between the guardian and the represented person and at least 7 text messages exchanged
·35 recorded calls recorded between the guardian and the represented person’s parents and several text messages exchanged
·123 lengthy emails between the guardian, medical and allied medical practitioners (including Dr. Tait, Dr. Warden, Dr. Jacket, Dr. Caemmerer and Ms Ainslie Allen)
The Board is satisfied that the delegate of the Public Guardian has undertaken his duties diligently and has met the expectations that the Board had at the time of appointment. In particular, the Public Guardian has adhered to the represented person’s expressed wish that his parents not have direct involvement in his medical care. The Board considers that this is an important factor in addressing the family dysfunction. It appears to the Board that the Public Guardian has acted in the best interests of the represented person.
The application is dismissed.
Anita Smith Kim Barker Wendy Hudson
PRESIDENT MEMBER MEMBER
Request for statement of reasons received: 6 December 2013
Statement of reasons delivered: 17 December 2013
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