QKI (Guardianship and Administration)
[2020] TASGAB 42
•27 August 2020
CITATION: | QKI (Guardianship and Administration) [2020] TASGAB 42 |
HEARING DATE(S): | 27 August 2020 |
DATE OF ORDERS: | 27 August 2020 |
DATE OF STATEMENT OF REASONS: | 24 September 2020 |
BOARD: | Ms M. Williams, Member Mr C. Lee, Member Mr G. Dibley, Member |
APPLICATION | Application for Guardianship and Administration |
CATCHWORDS: | Guardianship – administration – assessment of cognition and function – less restrictive option |
LEGISLATION CITED: | Guardianship and Administration Act 1995 (Tas), ss 3, 6, 20, 28, 51, 68 |
PUBLICATION RESTRICTION: | The decision has been anonymised for the purpose of publication |
Statement of Reasons
Application
On 27 August 2020, the Guardianship and Administration Board (‘the Board’) heard an Application for Guardianship and Administration for QKI. The Application was filed by Ms Louella Tria a social worker at the Royal Hobart Hospital (‘RHH’).
The Board found that QKI is a person with a disability; that she is unable, by reason of that disability, to make reasonable judgments in respect of her estate and some matters relating to her person and circumstances, and therefore she is in need of an Administrator and a limited Guardian. Full terms of the Orders made are set out at the conclusion of this Statement of Reasons.
QKI’s solicitor has requested a Statement of Reasons in relation to the Board’s decision.
Hearing
The following persons attended the hearing via telephone or video link:
a. Ms Louella Tria, Applicant, social worker RHH;
b. QKI, the proposed represented person;
c. Mr Ben Harris, solicitor from the Legal Aid Commission of Tasmania representing QKI;
d. Ms Claire Morgan, Advocacy Tasmania Inc., advocate for QKI;
e. Dr Jeremy Smith, Older Persons Mental Health Services, Consultant Old Age Psychiatrist, Repatriation Hospital;
f. Dr Anju Bhagwat, Consultant Geriatrician, Aged and Rehabilitation Services, RHH;
g. Dr Alison Cleary, Geriatrician, Roy Fagan Centre;
h. Dr Kyle Williams, Resident Medical Officer, RHH;
i. Ms Georgina Lithgow, social worker;
j. GI, husband of QKI;
k. DI, daughter of QKI;
l. Ms Natasha Veenstra from the Office of the Public Guardian; and
m. Ms Rosemary Jurs from the Public Trustee (Tas).
The Board had the following documentation before it:
a. Application for Guardianship and Administration dated 6 August 2020;
b. Health Care Professional Report from Dr Jeremy Smith dated 31 July 2020;
c. My Aged Care Support Plan, Southern ACAT, Sheila Campbell undated (but generated on 7 August 2020);
d. Letter form Dr Frank Nicklason, Specialist Physician, Geriatric Medicine, RHH undated;
e. the List Property Information Report, Property ID [XXXXX XX]; and
f. Letter from Dr Martin Ward, John Street Medical Centre re GI dated 30 July 2020.
Legislation
When the Board assesses an Application for the appointment of a Guardian it needs to be satisfied of the matters in section 20 of the Guardianship and Administration Act 1995 (‘the Act’), that is, 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 his person or circumstances; and
c. is in need of a guardian.
Similarly, when the Board assess an Application for the appointment of an Administrator it needs to be satisfied of the matters in section 51 of the Act, that is, 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 matters relating to all or any part of his or her estate; and
c.is in need of an administrator.
Section 3 of the Act provides a wide definition of disability as ‘any 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.’
The Board must also in both guardianship and administration matters balance the principles in section 6 of the Act, which include:
a.That 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.
Section 28 of the Act provides that if the Board makes a Guardianship Order it may specify that the Guardian is empowered to take such measures or actions specified in the Order to ensure the represented person complies with any decision of the Guardian in the exercise of powers and duties conferred by the Order.
A Guardianship Order and/or Administration Order may be made for a period of up to three years unless it is continued under section 68 of the Act.
Evidence
Disability
The Board had before it the Health Care Professional Report dated 31 July 2020 from Dr Jeremy Smith (‘the HCPR’), consultant old age psychiatrist with Older Persons Mental Health Services, Geriatrics Unit at the Repatriation Hospital. In the report, Dr Smith states QKI has a diagnosis of vascular cognitive impairment from a subarachnoid haemorrhage (stroke), resulting from a ruptured middle cerebral artery, evident since 1994. For approximately five years vascular dementia has become evident as a progression of the vascular cognitive impairment (acquired brain injury) caused by the stroke, which is a moderate disability with slow progression. In addition, at the hearing, Dr Smith provided oral evidence. He stated QKI had a quite large and damaging right side subarachnoid haemorrhage in 1994. As a result, Dr Smith stated QKI experiences physical difficulties of left hemiparesis and there have been cognitive sequelae as well. Dr Smith, with QKI and the Board’s permission (via Microsoft Teams screen sharing) showed the Board a scan of QKI’s brain, dated 6 July 2020. Dr Smith stated the CT scan serves to illustrate that there are large sections of the right side of QKI’s brain, including parts that link into the frontal lobe and emotional parts of the brain that, unfortunately for QKI, are missing. The results are cognitive and emotional deficits from the stroke, occurring over 26 years ago. Dr Smith, in answer to a question from QKI regarding results of prior scans, stated radiologists have advised him the results of the CT scan are similar to previous scans taken, although it would be a mistake to conclude there have been no changes in the brain over time, as the scans do not detect more subtle levels of change in terms of how the neurological structures are functioning to inform of interval change in the brain. It was determined by the Board that as only the three Board members, Dr Cleary and Dr Smith (via Microsoft teams) could observe the scan, no evidential weight was placed on the scan results, and the scans simply served to the assist the Board visualise oral evidence provided by Dr Smith, as intended by Dr Smith.
In addition, Dr Smith stated that the stroke has caused a decline from QKI’s pre-stroke high cognitive baseline. He stated that he has obtained a history that pre-stroke QKI was of above average intelligence, highly educated and involved in professional work employed as an educational psychologist. As a result, QKI had a high cognitive reserve, which means that deficits in cognitive functioning can be partly obscured but can become more pronounced over time. He stated the stroke has impacted QKI’s domain of social cognition, related to understanding the perception of others, the ability to form an empathetic viewpoint of others and to read emotionally subtle and/or complex situations (also known as theory of mind). Dr Smith added QKI has executive function deficits, which involve the ability to problem solve and organise multiple points of information, in a way that assists to achieve an outcome when faced with a challenge. In addition, he stated QKI experiences emotional regulation deficits, involving the ability to understand, contain and manage the emotional responses she has to the people and circumstances around her.
QKI indicated herself (and via her solicitor and her advocate) that she does not dispute that she has a disability, but disputes that her disability equates to a lack of capacity. She believes she is able to make reasonable judgements regarding her personal circumstances and finances.
Unable by reason of the disability to make reasonable judgements
In the HCPR Dr Smith states the disability is moderate and deteriorating, and as a result of the disability QKI has deficits in receptive communication, planning and reasoning skills, impulse control and susceptibility to influence/suggestibility.
In relation to guardianship, in the HCPR Dr Smith opines that QKI’s frontal-executive impairments (secondary to vascular dementia) impacts on her capacity to make reasonable judgements in respect to where to live (permanently and temporarily) due to impairment on her ability to recognise the extent and nature of her impairments and her care needs, the risk of falls and misadventure, and the impact of her behaviour on carers and significant others (with related risk to her relationships as a result of her husband and daughter’s carer fatigue). She is unable to weigh this relevant information to make an informed decision on her accommodation needs. Similarly, in relation to support services, Dr Smith writes QKI has capacity to be involved in planning of services, but not regarding the final decisions to be made. In relation to heath care decisions Dr Smith states that QKI has capacity to consent to low-risk and everyday medical treatment but lacks capacity for highly complex or high-risk medical decisions.
Dr Smith provided additional oral evidence at the hearing, stating QKI is faced with a very complex decision about how she is to live in the near future in terms of accommodation, services and healthcare and how these things will impact on her financially. In order to do that, QKI needs to be able to understand the views of the important people who have an impact on that decision, particularly her close family members, GI and DI, and the impact her behaviour has on them. To make a reasonable judgement as to what is the best way forward, she needs to be able to understand and then weigh the viewpoints and the consequences for those people closest to her. However, because of the described deficits in social cognition she is not able to understand and then weigh the relevant information provided to her (repeatedly) by her family and others about her care needs and her most viable accommodation options.
In relation to finances and legal matters, in the HCPR Dr Smith states that the disability impacts on QKI’s capacity to make reasonable judgements in relation to day to day financial requirements and more complex financial and legal decisions. He states QKI has a ‘rough idea’ of expenses but is not able to provide detail. She states she contributes to day to day finances, but this is contrary to collateral he has from GI, who in practice has managed all major aspects of finance for past 25 years. He has also obtained collateral history that when QKI had management of a portion of her finances, her ability to regulate her impulses had an impact on her spending choices, sometimes not in her best interests. For example, she had a difficult period with gambling, an activity which she did not engage in prior to the stroke, attributable at least in part to the brain injury caused by the stroke. In the HCPR, Dr Smith states her long history of gambling since her vascular cognitive impairment has only reduced in the recent past in the context of reduced access to driving.
QKI disputed the evidence provided by Dr Smith in relation to her capacity to make reasonable judgements about accommodation, health care, support services and financial decisions. She stated herself (and via submissions from her solicitor and her advocate) that:
a.Having a disability did not mean she could not make these decisions.
b.She wants to go home, she belongs there, it is her ‘sanctuary’.
c.There are other options to explore to allow her to live at home, she is willing to look at level 4 care package, or respite, perhaps for 9 to 12 weeks.
d.She has been managing her finances independently all her life.
e.Her gambling involved going to the casino with her husband twice a week as a social event and she does not have an addiction to gambling.
f.Although she and her husband have separate accounts, she is willing to contribute to mortgage by placing money into jointly held funds.
In addition, QKI stated assumptions about her capacity were being made from CT scans and she raised her concern that psycho-neurological tests have not been done to demonstrate what Dr Smith is stating is true.
Dr Smith replied to QKI’s concerns regarding neuropsychological testing. He stated that the role of psychometric testing of someone with an impairment is not a simple one as testing can indicate a person as being within normal limits but there can be a significant impairment when taking into account high premorbid functioning and IQ, which is the case for QKI. In Dr Smith’s view, the best indicator is how someone functions in the real world and to assess cognition and function by gaining a history from the person and obtaining collateral history from others. Dr Smith added he did some ‘bedside’ cognitive testing (a screening tool Dr Smith uses to assess cognitive impairment) on 27 July 2020 whilst QKI was an inpatient on the Peacock Ward, and QKI scored less than the tenth percentile on some executive functioning tests, which demonstrated a clear decline from her premorbid baseline.
QKI was under the care of Dr Cleary in a 2018/2019 admission to Roy Fagan Centre. Dr Cleary gave oral evidence at the hearing that she agrees with Dr Smith’s evidence and his views that collateral information is a best test of capacity, particularly relevant in circumstances that under consideration for QKI. She advised that neuropsychological testing was completed on 15 February 2019, demonstrating that QKI did have a premorbid high level of functioning. The test included testing multiple domains, including attention, language, visuospatial memory, and executive function. These formal assessments demonstrated a significant decline in QKI’s overall skills from a high pre-morbid to a low average level. These results were helpful for Dr Cleary to form her opinion in 2019 that QKI had persistent cognitive deficits compared to her premorbid function.
Dr Bhugwat and Dr Williams agreed with the opinions of Dr Cleary and Smith. The Board also had before it a report of Dr Frank Nicklason, specialist physician in Geriatric Medicine who has been involved with QKI’s outpatient care for over 10 years. In the report he confirms that the subarachnoid haemorrhage has resulted in significant and complex cognitive, perceptual and attentional problems for QKI and in recent years a decline, both physically and cognitively. He states, ‘it is my belief that QKI is unable to make a competent decision about what is appropriate accommodation/care for herself’ and he is ‘firmly of the view that she should not return to living with GI at home’.
Need for a Guardian and/or Administrator
In the Application, Ms Tria indicates a clear need for decisions to be made in respect to discharge planning and accommodation following an admission to hospital with delirium on 28 June 2020, which has resolved. Ms Tria states that QKI has been increasingly reliant on family for care and is requiring 24-hour support to remain living at home. Unfortunately, her family are no longer able to provide the increased level of care and have reported carer fatigue. Ms Tria notes that GI has stated to hospital staff that due to his increasing age and disability, he is concerned for his wife’s and his own safety. The Application states QKI will not consider residential aged care, even though the treating team are of the opinion she is not safe to return home. In addition, discharge planning requires management of financial aspects, her finances are separate to her husband, and with a likely need to transition to alternative accommodation, involving contractual arrangements and payment for accommodation. Additionally, QKI does not have a nominated bank authority nor a Centrelink nominee.
Dr Smith provided evidence at hearing that GI and DI have been very clear that they are unable to continue to provide the level of care that QKI requires at home, so there is a very acute need for a decision to be made about where she is to live. When QKI is asked to solve the problem about living arrangements, she presents several different solutions, but none, in Dr Smith’s opinion, are based on reasonable judgements. For example, she has suggested GI could return to Holland, or she could live in their house alone and he could move out, she could live in a separate part of the house as she does not require any particular assistance or care from her husband (and that he requires more care than she does) and that she could live at home with extra assistance from carers. Dr Smith indicated that GI has stated to Dr Smith and others attending a family meeting that he was significantly fatigued by his carer role and is no longer able to provide the level of care that she needs. GI advised carers have been provided to assist in the house in the past, but these attempts have failed because what is required is support 24/7, which cannot realistically be provided by carers in the home. Further, GI advised in that meeting, that when carers have been involved QKI has preferred GI to provide the care. In summary, Dr Smith stated QKI does not have capacity to make a decision regarding accommodation and therefore there is no alternative to the Board appointing an independent substitute decision maker. He added that, unfortunately, he saw no less restrictive alternative, with the best interests of QKI being served by preserving what have been very caring and important relationships between herself, her husband and her daughter, by appointment of a Guardian. That Guardian is needed to determine where QKI should live, her care needs and how to manage her finances, particularly in relation to those matters.
GI told the Board there is a conflict of opinion between himself and his wife as to her care needs and his ability to deliver them. For 26 years he has been his wife’s primary carer and her care needs have been many and increasing. GI described numerous trips to emergency department from falls, involving broken bones and other injuries, including many falls where usually he is the only person in the house to pick her up. He added QKI has had two emergency admissions for delirium (2019 and the present admission) with lengthy stays in hospital followed by rehabilitation. He described that his ability to provide the care for QKI increasing needs has decreased with his advancing age and his own health issues. He described that for the past few years, 24/7 care has been required as her falls have increased, she has a problems with the stairs, she has insisted she wants to continue to drive (although her licence has been revoked), she requires toilet assistance during night and has increased urinary incontinence, and other needs such as drying her after showering. GI stated he is concerned for her health and safety if no one is home. He is concerned to leave the house as that might lead to another serious accident, so he leaves for very short periods of time, for example to buy groceries. He described living in an isolated area, with no public transport and he needs to drive her to all appointments. He does the cooking and cleaning, shopping and administers medication. He added that because of her gambling, she has had no money to contribute to the mortgage and he pays all household bills. He added QKI blames him for her problems since her stroke, but she denies she does this. At this stage in the proceedings QKI became verbally aggressive and very angry towards her husband. GI told the Board that (as demonstrated) he does not have a chance to put his case forward, as his views are met with anger from his wife, which he has great difficulty coping with.
The Board also had before it a My Aged Care Report (undated but related to a 2018/2019 admission for delirium). The report describes the family residence as a split-level home on 8 acres in Southern Tasmania and as of early 2019 high level respite care was recommended, with mobility and attending to activities of daily living issues.
The report of Dr Nicklason describes GI as being XX and exhibiting signs of serious carer stress. In line with the evidence provided in the Application, by Dr Smith and GI, the report notes:
As a result of the stroke damage QKI is not able to understand her dependency, the risks she is exposed to, nor the difficulty that GI has providing care. QKI is unable to show appreciation for care rendered, nor perceive GI’s stress. She has been verbally abusive to GI. QKI is only able to consider her own needs and wishes since her stroke. This all is sharp contrast to her previous personality and way of being.
The Board had the additional medical evidence of Dr Martin Ward, general practitioner, John Street Medical Centre, who has known all members of the family for over 30 years. He describes in his report the physical, psychological, and financial strain on the family looking after QKI. He notes GI’s major health issues and his age limiting his physical capacity, describing him as the primary carer in a ‘situation that has been deteriorating for a quarter of a century.’ Clearly, in Dr Ward’s view maintenance of the status quo is untenable.
DI told the Board that for the past 26 years her parents have remained a family unit at home and her father has looked after her mother full time, but it is now a sad situation where her father is no longer capable of providing the care her mother needs. She explained her father has provided 24/7 care on and off since 1994, particularly when there has been an accident or event, but the 24/7 care has been constant for the ‘last 5 years or so’.
Ms Natasha Veenstra from the Office of the Public Guardian submitted that QKI would benefit from appointment of a Guardian, there being a clear need for decisions regarding accommodation, services and health care decisions, with the weight of medical evidence that she is unable to make reasonable judgements about her person and circumstances due to her disability. Ms Rosemary Jurs, from the Public Trustee stated she has no argument with the evidence presented regarding the need for administration of QKI’s estate.
Section 28 powers
The need for section 28 of the Act powers, should a Guardian be appointed by the Board, was supported at hearing by evidence from Ms Tria and Dr Smith. The evidence was to the effect that a decision by a Guardian to keep QKI in hospital against her will, or to discharge her and place her in a residential aged care facility, which she is extremely opposed to, would most likely require the Guardian to have the power to ensure QKI complies with any decision made. In addition, Dr Cleary gave (albeit historic) evidence that when she was an inpatient in 2019 the need for section 28 powers to a Guardian was very similar to present circumstances. During that admission QKI made repeated requests to discharge herself against medical advice and the appointed Guardian needed to detain her on the ward. QKI agreed she has requested discharge during her present admission and that she would return home if she was discharged, but during the 2019 admission she was ‘joking’ that she wanted to be discharged.
Determination
Is QKI a person with a disability?
Based on the written medical evidence, the HCPR and reports of Dr Nicklason and the oral evidence provided by Drs Smith and Dr Cleary at hearing, and given QKI agrees she has a disability, the Board is satisfied that QKI is a person with a disability as defined in section 3 of the Act.
Is QKI unable, by reason of the disability, to make reasonable judgements in respect to her person and circumstances and/or her estate?
The overwhelming medical evidence before the Board, is that by reason of the disability, QKI is unable to make reasonable judgements in respect to her person and circumstances, in particular where she is to live (whether temporarily or permanently) and provision of services and her financial circumstances/estate.
Is there a need for appointment of a Guardian and/or Administrator?
The Board is satisfied there is a clear and imminent need for decisions to be made regarding accommodation and services and related financial and legal matters. Unfortunately, the alternative options suggested by QKI (and her solicitor and advocate on her behalf) that were intended to demonstrate least restrictive options to resolve the accommodation, services and financial issues, in the Board’s view, taking into account the totality of the evidence, are untenable. QKI’s stated wish to return home is clear and her views that an appointment of a guardian and/or administrator is unnecessary were considered by the Board, but the weight of evidence is that there is a cogent and imminent need for appointment of both. There is no less restrictive option than appointment of a Guardian and Administrator in the circumstances. It is noted that there are no imminent decisions to be made with respect to health care, but by the Board appointing a Guardian that person is also the ‘person responsible’ under the Act and can make decisions pertaining to medical treatment, if the need arises.
In the Application, and the HCPR there is an indication that family members do not wish to be appointed as Guardian or Administrator. QKI conceded that as neither her husband nor daughter were willing to take up these roles and she is unable to nominate any other person who may be suitable for appointment, she accepts that if the Board decides it appropriate to appoint substitute decision makers that the Office of the Public Guardian and the Public Trustee would be appointed.
The Board also considers that section 28 of the Act powers are appropriate, noting the matters noted in these reasons at paragraph 31.
Orders
Guardianship:
The Public Guardian (Tas) is appointed as limited Guardian of QKI with the power to:
i. Decide where QKI is to live whether permanently or temporarily.
ii.Determine which services QKI should access and provide consent to such as required.
In addition, pursuant to section 28 of the Guardianship and Administration Act 1995, the Public Guardian; any police officer; any employee or agent of the Tasmanian Health Service (THS) or the Royal Hobart Hospital or the Repatriation Hospital or any residential aged care facility where QKI is staying as determined by the Guardian, are empowered to take the measures or actions specified to ensure that QKI complies with any decision of the Guardian made under this Order.
Specified measures or actions: the use of such reasonable force or physical and/or chemical restraint as is necessary to facilitate transport of QKI to any THS facility and/or any residential aged care facility and/or the Repatriation Hospital determined by the Guardian from time to time; and to keep QKI there or return her there should she leave, contrary to the Guardian’s decision.
Administration:
The Public Trustee (Tas) is appointed as Administrator of the estate of QKI.
The Administrator is authorised to distribute gifts from QKI’s estate to a maximum of $500.00 per year. Such gifts are subject to the Administrator’s discretion.
Duration:
That both Orders remain in effect until 26 August 2021.
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