QKI (Guardianship and Administration)

[2019] TASGAB 5

CITATION:	QKI (Guardianship and Administration) [2019] TASGAB 5
HEARING DATE(S):	21 February 2019
DATE OF ORDERS:	21 February 2019
DATE OF STATEMENT OF REASONS:	18 March 2019
BOARD:	President Rowena Holder
APPLICATION	Guardianship and Administration
CATCHWORDS:	Interim Guardianship orders – whether there ‘may be grounds’ to make an order – s.73A
LEGISLATION CITED:	Guardianship and Administration Act 1995 (Tas), ss 3, 6, 20, 51, 73A
CASES CITED:

Statement of Reasons

The Board’s interim decision

1. On the 21 February 2019, the Guardianship and Administration Board (the Board) heard an Application for Guardianship and Administration for QKI. The application was filed by Ms Louella Tria, social worker at the Jasmine Unit, Roy Fagan Centre (RFC).

2. QKI’s solicitor, Ms Harradine submitted that the Board should adjourn proceedings to allow QKI opportunity to obtain further medical evidence.  No one present at the hearing opposed the adjournment and the Board adjourned the Application to a date to be fixed. The decision to adjourn the hearing raised the issue of interim orders pending the resolution of the Application. The Board made an interim Guardianship Order, appointing the Public Guardian with the powers limited to:

   a.where the Represented Person is to live whether permanently or temporarily; and

   b.providing consent to the provision of support services to the Represented person.

3. The Board did not make an interim administration order.

4. QKI’s solicitor has requested a Statement of Reasons in relation to the Board’s decision. This Statement of Reasons and decision is limited to the part-heard matter before the Board. The question of disability and capacity were in dispute at hearing, so the hearing was adjourned to enable further medical assessment and medical evidence to be obtained.

The Hearing

1. The following persons attended the Hearing:

   (a)Ms Louella Tria, Applicant; 

   (b)QKI, the Proposed Represented Person

   (c)Ms Bia Harradine, solicitor from the Legal Aid Commission of Tasmania representing QKI

   (d)Dr Alison Cleary, treating Geriatrician at the Roy Fagan Centre

   (e)Mr GI, husband of QKI

   (f)DI daughter of QKI

   (g)OI, by telephone, son of QKI

   (h)DS, friend of QKI

   (i)Mr Sam Shinnick from the Office of the Public Guardian;

   (j)Ms Rosemary Jurs from the Public Trustee (Tas)

1. In determining the matter, the Board had the following documentation before it:

   (a)Application for Guardianship and Administration dated 4 February 2019;

   (b)Health Care Professional Report from Dr Adil Syed dated 29 January 2019;

   (c)Copy of Emergency Guardianship Order made by the Board dated 16 January 2019;

   (d)Aged Care Client Record, Department of Health and Ageing dated 5 April 2013;

   (e)the List Property Information Report

   (f)Office of the Public Guardian’s ‘Report to the Board – Emergency Order(1)’ dated 8 February 2019

   (g)Email from Dr Alison Cleary dated 12 February 2019

   (h)Letter from the Office of the Public Guardian dated 8 February 2019

   (i)Interim Neuropsychological Assessment Report from Dr J Scott McDonald dated 15 February 2019

Requirements of the Guardianship and Administration Act (1995)

1. When the Board considers making an interim order pursuant to s 73A of the Guardianship & Administration Act 1995 (the Act) the Board needs to be satisfied that there may be grounds for making a Guardianship and/or Administration Order. S 73A of the Act states:

   (1)  If the Board adjourns the hearing of an application under this Act and it considers that there may be grounds for making, in respect of a person, a guardianship order or administration order or a further guardianship order or further administration order then it may -

   (a) make an interim order appointing, as the case may be, the Public Guardian as the person's guardian or the Public Trustee as the administrator of the person's estate; and

   (b) make or give any related orders or directions it considers appropriate in the circumstances.

   (2)  An interim order has effect for the period of the adjournment and any subsequent adjournment.

2. When the Board assesses an application for the appointment of a Guardian it needs to be satisfied of the matters in s 20 of the Guardianship and Administration Act 1995 (the Act), that the PRP:

   (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.

3. Similarly, when the Board assess an application for the appointment of an administrator it needs to be satisfied of the matters in s 51 of the Act, 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 an administrator.

4. The Board must also balance the principles in s 6 of the Act, which include:

   -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

   -The best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and

   -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.

Whether there ‘may’ be grounds for making a guardianship order

Disability

1. s 3 of the Act defines disability as meaning

   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;

2. The Board had before it a Health Care Professional Report from Dr Adil Syed dated the 29 January 2019. Dr Syed reported that QKI has a persisting delirium and a background of cognitive impairment. Dr Syed reported that:

   QKI’s underlying cognitive impairment is unlikely to improve and may progress as she ages. The delirium has already improved markedly and is likely to further gradually.’

3. At hearing Dr Cleary provided an opinion that QKI, a 73 year old female person, has an acquired brain injury from an intracerebral bleed which occurred approximately 25 years ago which has caused some left sided hemiplegia, and some impairments of frontal, temporal and executive functions. Dr Cleary stated that QKI has anxiety, depression, labile mood, osteoarthritis and chronic pain. Dr Cleary detailed QKI’s admission and self-discharge from Calvary Hospital on the 20 December 2018 and then her admission to the Royal Hobart Hospital (RHH) on the 23 December 2018. At her admissions QKI was diagnosed with a delirium. Dr Cleary reported that during her delirium and while at the RHH, QKI fell and suffered a fracture of the left fibula on the 27 December 2019.  Dr Cleary gave evidence that QKI had recovered from her delirium on or about the 30^th January 2019.

4. QKI’s solicitor submitted to the Board it could not be satisfied of disability. QKI’s solicitor did not tender any medical evidence to the Board.

5. ‘Disability’ is defined in s 3 broadly in the Act. On the basis of the written medical evidence and the oral evidence provided by Dr Cleary at hearing, the Board concludes there may be grounds for finding that QKI is a person with a disability. The Board is also satisfied on the evidence that QKI has recovered from delirium.

Unable by reason of the disability to make reasonable judgements

1. The Health Care Professional Report of 29 January 2019 from Dr Sayed reports that the PRP has impaired expressive and receptive communication, impulse control and planning and reasoning skills arising from a disability, which Dr Sayed has stated as cognitive impairment and persisting delirium, which ‘had already improved markedly and is likely to further gradually.’ Dr Sayed concludes that QKI is unable to make reasonable decisions about where she should live, permanently or temporarily and the nature of services she should access, ‘at this current time.’ This Report predates the further cognitive testing of QKI which occurred on the 30 January 2019.

2. A copy of an Interim Neuropsychological Assessment Report (Interim Report) from Dr J Scott McDonald dated 15 February 2019 was before the Board.  Dr McDonald was not present at the hearing. Dr McDonald comments that

   QKI’s current neurocognitive profile is the result of a complex mixture of factors that cannot be separated. Although her current profile likely represents a decline from her premorbid function, she is typically within normal limits for her age cohort.

3. This comment needs to be read in the context of the entire report.  Dr Cleary confirmed she had read the Interim Report and noted that even though the testing indicated that QKI was in normal limits for her age cohort this still presented as significant impairment for her given her pre morbid functioning was very high.  Dr Cleary gave evidence that QKI has evidence of frontal and executive deficits which impact on her decision making and judgement and which arise from her acquired brain injury.  Dr Cleary expressed an opinion that persons with an acquired brain injury could experience vascular deficits with ageing and is was not uncommon for vascular dementia to eventuate. Dr Cleary expressed concern that QKI may experience ongoing vascular deficits.  Dr Cleary stated she had consulted clinical notes from Dr Frank Nicklason which was part of the digital record at the RHH when forming her opinion.  Given these notes were part of the digital record they were unable to be tendered at hearing.

4. QKI raised concerns about how the psychological testing had been conducted and concern that the author of the report had not completed the testing.  QKI’s solicitor suggested that further psychological testing or assessment could be done. There was also discussion by QKI and her solicitor that QKI’s treating General Practitioner could be contacted for evidence.  It was also confirmed at hearing, that QKI had consulted Dr Frank Nicklason, geriatrician, and in more recent times a psychiatrist. QKI was agreeable to consulting Dr Nicklason given his previous involvement for further assessment and report and indicated a preference that contact be made away from the RFC.

5. On the basis of the written medical evidence the Board has at this time and the oral evidence provided by Dr Cleary at hearing, the Board concludes there may be grounds for finding that QKI is unable to make reasonable judgements by reason of a disability to matters relating to her person or circumstances. 

6. The Board invited QKI to provide any further medical evidence she seeks to rely on at the continuation of the hearing.

Need

1. There were two primary considerations for the Board as to need: accommodation and support services.

2. The Applicant contended that there was a need for interim orders as it was the treating team’s view that QKI should remain at the RFC for rehabilitation.  Dr Cleary gave evidence at the hearing that QKI required numerous weeks of ‘slow stream rehabilitation’ to allow her left fibula fracture to heal.

3. Dr Cleary gave evidence that QKI’s ability to make appropriate decisions about her accommodation was impaired and that she needed to be supported in a safe environment. Dr Cleary stated she had had a number of discussions with QKI where QKI minimised her care needs and was adamant she wanted to return home. In her email dated 12 February 2019 Dr Cleary wrote:

   Due to her high care needs attributable to complex factors of: acquired brain injury, cognitive impairment, anxiety and depressions, hemiplegia and a range of psychological factors and behaviours of concern our long term advice is that QKI now requires supervised care 24 hours a day in a suitable environment (without stairs and with supported community access.)

4. Dr Cleary gave evidence that QKI had stated she wanted to discharge home while she was in a moon-boot and she had decided she could live downstairs as her bedroom was upstairs with the only access being a spiral staircase. She believed she could do this with the support of her husband.  Dr Cleary gave evidence that QKI had in the past rejected support services assisting in the home. This was disputed by QKI who indicated it was her husband who has refused support services coming into the home, because ‘he is a very proud man.’ Dr Cleary gave evidence that in recent discussions with QKI, QKI had not seen any need for services if she returned home.

5. GI explained to the Board his concerns about being able to meet QKI’s care needs if she was to return home and felt because of his age he was no longer able to provide the level of care that was required. QKI became upset and responded by saying words to the effect of ‘you don’t want me home.’ Family members provided assurance that this was not the case.

6. QKI gave evidence that she was agreeable to remain at the RFC for the current time but at another point in the hearing became upset and said she did not like being at the RFC and would prefer to be at home. The Application stated that ‘over the past 2 months QKI discharged herself against medical advice demanding her family take her home in the middle of the night.’ Further, in the email from Dr Alison Cleary dated 12 February 2019 it states:

   ‘She repeatedly requests to discharge immediately (“I want to go home” “my husband will take me home”) to her home in Tinderbox. On Friday she specifically requested if a Taxi she was in could drive to Tinderbox, while she was on a lunch outing with her husband. Her husband was able to re-direct her and ensure her return, but is concerned for future events.’

7. At hearing, QKI disputed she was attempting to return to her home by taxi on the 8 February 2019 and indicated this was just a joke and not her intention. The Board has a copy of the letter from Mr Shinnick dated 8 February 2019 confirming he consented to QKI’s continued treatment at RFC.

8. While the hearing has been adjourned to enable further medical assessment to be completed and medical reports obtained, this does not mean decisions cannot be made around discharge planning and the timing of this. No estimates were given except ‘a couple of weeks’ as to the length of rehabilitation, which appears to be predominantly related to the healing of her left fibula fracture.  The Board considered there may be a need for a Guardian to make timely decisions about discharge planning and determine discharge accommodation. It is unknown how long QKI will require rehabilitation and it may be that discharge planning can commence before further medical evidence is obtained and the Application is further heard and determined. If a Guardian is appointed, it is a Guardian who can determine where QKI is to live, temporarily or permanently.  Depending on the accommodation decision made, this may require the engagement of services and paid support.  If a Guardian determined QKI was able to return home, which is QKI’s clear wish, the issue of the need of services becomes very real.

9. In the Application, Health Care Professional Report and email from Dr Cleary, it is asserted that family members do not wish to be ‘person responsible’ for QKI. This was not discussed in any detail at hearing, given the decision to adjourn. It is noted however that if a Guardian is appointed, including an interim appointment, the Guardian is also ‘person responsible’ under the Act and can make decisions pertaining to medical treatment if the need arises.  However, the Act provides that when the Board makes an interim Guardianship Order it can only appoint the Public Guardian.

Conclusion

1. Based on the evidence before the Board and the issues raised above, the Board considers that there may be grounds for making a Guardianship Order for QKI. The Board is satisfied it is the least restrictive to make a Guardianship Order limited to specific powers, for accommodation and support services.

2. The Applicant did not contend there was a need for an interim administration order.

3. After hearing an Application for Guardianship and Administration

THE BOARD ORDERS:

1.    That the hearing is adjourned to a date to be fixed.

2. That pursuant to s 73A of the Act, the Public Guardian be appointed as guardian of QKI, the Represented Person for the period of adjournment and any subsequent adjournment or until the Application is dismissed.

3.    That the powers of the Guardian are limited to decisions concerning:

(a)   where the Represented Person is to live whether permanently or temporarily; and

(b)    providing consent to the provision of support services to the Represented Person.