NXD (Review of Guardianship)
[2019] TASGAB 23
•30 July 2019
| CITATION | NXD (Review of Guardianship) [2019] TASGAB 23 |
HEARING DATE: | 30 July 2019 |
DATE OF ORDERS: | 30 July 2019 |
DATE OF STATEMENT OF REASONS: | 19 August 2019 |
BOARD: | Ms L. Wall |
APPLICATION: | Review of Guardianship |
CATCHWORDS: | Review of Guardianship – no current need for Order – consent to chemical restraint |
LEGISLATION CITED: | Guardianship and Administration Act 1995 (Tas), ss 4, 6, 20, 43, 67. |
PUBLICATION RESTRICTION: | This decision has been anonymised for the purpose of publication |
Statement of Reasons
Background
On 31 July 2019, the Guardianship and Administration Board (‘the Board’) heard an Application for the statutory review of Guardianship for NXD. The application was made by PXE, son and Guardian to NXD.
NXD is an 88 year old widow who resides at [the aged care facility].
Board’s Decision
The Board found that NXD is no longer in need of a Guardian and therefore revoked the Guardianship Order.
Hearing
There was no attendance at the hearing. By prior arrangement with the Board Registry, NXD’s General Practitioner, Dr Robyn Mathews made herself available by telephone.
The Board had before it the following documents:
a.The Application for Review of Order dated 19 June 2019;
b.A Health Care Professional Report (‘HCPR’) by Dr Mathews dated 12 June 2019; and
c.A Private Guardian’s Report to the Board by PXE dated 18 June 2019.
Legislation
Pursuant to section 67 of the Guardianship and Administration Act 1995 (‘the Act’), the Board may review an Order for the appointment of a Guardian. The Board needs to determine whether the Order should continue, be varied, or be revoked.
The Board must determine whether the requirements set out in section 20 of the Act are still met. These requirements are that the proposed represented person:
(a) is a person with a disability, and
(b) is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to - her person or circumstances; and
(c) is in need of a guardian.
The Board must also balance the principles in section 6 of the Act, which are:
(a) the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; and
(b) the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and
(c) 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.
Evidence
Although the Guardian, PXE, had indicated an intention to attend the hearing in person he did not do so. He did, however, provide a written report dated 18 June 2019. In it he stated that:
a.NXD’s dementia, anxiety and depression had all deteriorated in the last 12 months. Her anxiety had increased to the point that he consented to the use of ‘chemical restraint’ because ‘on numerous visits I found my mother sitting in her room screaming at the top of her voice’.
b.He had made the decision to move her from Roy Fagan Centre (‘RFC’) to [the aged care facility].
c.She was in a secure facility.
d.That no current decisions about accommodation still needed to be made.
e.He had made health care decisions regarding ‘chemical restraint’ and ‘use of other calming medication in consultation with mother’s GP and the head nurse at [the aged care facility]’.
The HCPR provided by the Applicant from Dr Mathews diagnosed a disability, namely severe depression and anxiety, and Parkinson’s disease since 2015. The prognosis was poor as the condition was deteriorating. Her disability affected her reasoning and expression across the board. Dr Mathews’ opinion was that NXD was unable, as a result of her disabilities, to make reasonable decisions about any aspect of her person or circumstances.
Dr Mathews was contacted by the Board by telephone to provide evidence as to the use of ‘chemical restraint’ in the Guardian’s Report. This was to determine whether the use of such medications was solely a restrictive practice or whether it was, at least in part, for therapeutic purposes and thus capable of substitute consent by a relevant guardian or person responsible. ‘Person responsible’ is defined in section 4 of the Act and includes a close relative of the person.
Dr Mathews advised that NXD was under her care. She visited her fortnightly at the Home. NXD had deteriorated since the HCPR was written. Her mobility had worsened probably due to the Parkinson’s. Her disturbing behaviours had increased and because of her anxiety and depression there was a risk of her lashing out and causing verbal disruption. She was ‘tiny’ and therefore not a physical risk to others but there was a risk to herself of her behaviour inciting a response from others. For example, her behaviour precipitated another resident to throw a drink at her.
Dr Mathews described alternative non-medical strategies that had been attempted to manage NXD’ behaviours including one on one support from volunteers, diversional therapies, and by moving her from her environment to a dementia unit. Relocation worked for a short while but NXD is now back in her usual unit which is not a secure unit. She has freedom to move around the unit and a secure outdoor area. None of the strategies have proved effective for long and medication was deemed the last resort.
Dr Mathews advised that the medication for ‘chemical restraint’ (a benzodiazepine and an anti-psychotic - ‘the medications”) was a regime approved and instituted in the RFC by the treating team. She had tried to reduce the medications but this caused an increase in symptoms and the RFC team told her to reinstate those medications.
Dr Mathews expressed her concern about the use of such medications without adequate psycho-geriatric review. She had been waiting for NXD to be reviewed since February, the appointment having been deferred more than once. She had met, on her own initiative, with the Chief Psychiatrist to discuss the management of NXD amongst other patients. A review was now scheduled in two weeks.
Despite the reservations she expressed about the use of medications for behaviour modification without adequate review, Dr Mathews was satisfied that the medications do also have a therapeutic benefit. In addition to controlling her challenging behaviours, they enable NXD to get out of bed and to engage with others somewhat. She would not settle or sleep without the medications, and they reduce her symptoms of anxiety and psychotic depression. They do not help with the Parkinson’s Disease.
The Board, in considering whether NXD is in need of a Guardian, accepted that the medications are prescribed for therapeutic purposes as well as for behaviour modification and can be consented to by a person responsible in their health care role. That role could be fulfilled by NXD’s son without an Order of the Board. Pursuant to section 43 of the Act, a person responsible may consent to medical or dental treatment which is not special treatment if they are satisfied that the relevant person is incapable of giving consent, and the treatment would be in the best interests of the person.
The Board also found that there are no current decisions to be made regarding NXD’s accommodation now that she is settled at [the aged care facility]. PXE acknowledges this in his Report. Dr Mathews’ evidence that NXD resides now in a general, rather than a locked, unit was accepted. As NXD is accepting of her accommodation, a substitute decision maker is no longer required to consent to her accommodation.
The Board is satisfied that, although NXD has disabilities that mean that she is unable to make reasonable decisions about her person and circumstances, there is no longer any need for a Guardian in circumstances where her son PXE can make health care decisions as person responsible and there are currently no other lifestyle decisions to be made. Revocation of the Order is thus the least restrictive option available.
Decision
Accordingly the Board Orders that the Guardianship Order is revoked.
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