QLB (Guardianship)
[2012] TASGAB 31
•1 October 2012
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
QLB – Application for Guardianship by Mental Health Services
Neutral citation: QLB (Guardianship) [2012] TASGAB 31
REASONS FOR DECISION
Anita Smith (President)
Date of hearing: 1 October 2012
Guardianship – incapacity – proposed represented person a life prisoner with advanced Huntington’s disease – need for a guardian to address post prison accommodation issues and health care decisions – whether a purported advance care directive negated the need for a guardian – decisions about future legal processes
Guardianship and Administration Act 1995 ss 6, 20
Corrections Act 1997 ss 6, 36, 69(2)(a)
Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994
Hunter and New England Area Health Service v A [2009] NSWSC 761
Brightwater Care Group (Inc.) v Rossiter [2009] WASC 229
On 9 August 2012 the Board received an application from Mental Health Services for the appointment of a guardian for QLB. QLB is a prisoner for the term of his natural life, having been sentenced in 1980 for some very serious offences. He has been in prison since 1975 due to other proceedings. He has advanced Huntington’s Disease and the applicant’s view is that the Prison service can no longer provide adequate services and facilities for QLB in light of his physical and mental deterioration due to this disease. The applicant seeks the appointment of a guardian to make decisions for QLB in the process of finding alternate accommodation for him and determining his future health care.
Before the Board might grant an application for the appointment of a guardian for QLB, it must assess the elements set out in section 20 of the Guardianship and Administration Act 1995 (the Act):
“20(1) If the Board, after a hearing, is satisfied that the person in respect of whom an application for an order appointing a guardian or an order appointing an administrator is made–
(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 his or her person or circumstances; and
(c) is in need of a guardian–
the Board may make an order appointing a full or limited guardian in respect of that person and any such order may be subject to such conditions or restrictions as the Board considers necessary.”
When making that determination the Board must also balance three principles set out in section 6 of the Act:
“6. A function or power conferred, or duty imposed, by this Act is to be performed so that
(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.”
The hearing was convened at Risdon Prison on 1 October 2012 and was attended by:
QLB – Proposed Represented Person
Ann Marie Mallet – Manager, Forensic Health Services
Jo Maxfield – Acting Deputy Director of Prisons
Dr Chris Wake – Clinical Director, Correctional Primary Health Services
Lisa Warner – Public Guardian
Elizabeth Dalgleish – GAB Investigator
Is QLB a person with a disability?
Dr Chris Wake completed a Health Care Professional Report dated 4 July 2012 in which he indicated that because of his Huntington’s disease QLB has an acquired brain injury, atherosclerosis (small brain vessels), and dementia. Dr Wake described his diagnosis at the hearing, noting that he has known QLB for six years and has noted the progression of his disease both mentally and physically, in particular a manifest deterioration in the last two years. QLB did not express any objection to Dr Wake’s diagnosis. The Board concluded that QLB is a person with a disability within the meaning of the Act.
Is QLB unable by reason of his disability to make reasonable judgements in respect of all or any matters relating to his person or circumstances?
In the Health Care Professional Report dated 4 July 2012, Dr Wake noted that, by reason of his disability, QLB experiences deficits in his orientation to person, place and time, his expressive and receptive communication, his capacity for new learning, his susceptibility to influence and his planning and reasoning skills. Dr Wake also expressed the view that QLB “is unable to process more complex information and is easily taken advantage of” and “He is dementing and requires the services of the Board”. On the other hand, Dr Wake drew conclusions in that report that QLB can make decisions about where he should live permanently or temporarily and that he can understand the nature and effect of medical treatment “at the moment”. In a Referral for Assessment completed the same date, Dr Wake concluded that QLB was “currently competent”.
At the hearing, Dr Wake’s evidence was that QLB was prone to “getting lost” with respect to his thinking patterns and being unable to apply himself to more complex tasks. Dr Wake expressed the view at the hearing that QLB is capable of expressing wishes and preferences, but unable to undertake the planning and reasoning required to make informed decisions. He explained that QLB’s wishes and preferences are not accompanied by a depth of understanding about the choices he might express. He also noted that when a screening device was applied to test QLB’s capacity, the MMSE, he scored 18/30 which is preliminary evidence of a significant deficit in his mental competence. He said that in his report of 4 July 2012 he was extrapolating from a view expressed in January 2012.
Dr Wake’s distinction between the ability to express wishes and the capacity to make decisions is consistent with the Act which (in various sections) recognises that a person under guardianship may have been found to be incapable of making reasonable judgements, but it is still necessary to observe that person’s wishes, as far as possible, when making a substituted decision for that person. Where Dr Wake’s written report is internally inconsistent or conflicts with his evidence at hearing, the Board prefers his evidence at the hearing which was based on a more recent assessment and a clearer understanding of the meaning of competence or capacity.
QLB did not respond meaningfully to simple questions from the Board about whether he had any difficulty with remembering things or with thought processes. His responses did not relate highly to questions asked of him and frequently demonstrated Dr Wake’s description of him “getting lost” in his train of thought. His communication difficulties were evident from his responses.
The Board was satisfied that, while he is able to express wishes and preferences, QLB is unable by reason of his disability to make reasonable judgements in respect of matters relating to his person or circumstances, in particular making a planned and reasoned decision about future health care and accommodation.
Is QLB in need of a guardian?
Decisions about where QLB shall live temporarily or permanently:
A Departmental minute prepared by Dr Wake for the Chief Executive Officer of Mental Health Services notes that QLB is terminally ill, at increased risk of falls and will continue to decline physically until he is completely bedridden and incompetent. The prison service is unable to provide the requisite level of care for QLB.
Processes have commenced to have QLB removed from prison to an Aged Care facility pursuant to section 36 of the Corrections Act 1997. Pursuant to that provision, the Director of Prisons may direct that a prisoner be removed from prison to an institution or hospital and appoint a person, with the powers of a correctional officer, to take charge of the prisoner while they are in the institution or hospital. Under such a process, QLB remains a prisoner. The applicant considered that this process would require the appointment of a guardian to advocate on QLB’s behalf regarding the choice of institution or hospital in which he shall live.
Advice from the Department of Justice confirmed:
“The Tasmanian Prison Service is currently working in conjunction with Correctional Primary Health Service to determine the most appropriate course of action in regards to the care of QLB. Enquiries are currently being undertaken to identify a suitable institution to care for QLB, and once this has been determined, the relevant approval process will be undertaken to formally accommodate him there.”
After 37 years in prison, QLB is highly institutionalized and some witnesses were of the view that his true (but unexpressed) preference may be to remain in the prison environment. The Board conducted a view of his current accommodation. He is housed in the old part of the gaol, which has not been significantly modified since its construction in the 1950s. His cell is not much larger than the single bed it holds, has no personal furnishings (although other inmates in the vicinity had furnished their cells to a more hospitable standard), has an open toilet and a hand-basin which are significantly stained and most likely have not been modified since construction. The only natural light comes through the small opening in the door. It opens directly onto an open-air concrete court-yard, where approximately five other inmates were gathered with a dog which, in turn, opens to an exercise yard. Naturally, there are multiple locked cordons to which only the warders have keys. Access to the cell from the exercise yard is via a series of steps and cracked and broken concrete paths, which present serious tripping hazards for a frail person. It would not be possible to access the cell or the court yard from the exercise yard with a wheelchair without significant assistance, if at all. While an Aged Care facility cannot prevent QLB having falls, the trip hazards would be reduced and the consequences of a fall to carpeted surfaces may not be so severe as to concrete. An Aged Care facility would also be wheelchair accessible.
There are complexities in deciding where QLB shall live once removed from prison. For instance: QLB is a particularly heavy smoker which may complicate the process of finding a suitable Aged Care facility for him given the ban on smoking in Aged Care facilities and the limited abilities for these facilities to accommodate heavy smokers in secure environments.
(ii) Decisions about QLB’s health care:
The applicant submitted there is a need for a guardian to make decisions about QLB’s health care decisions while he is in this terminal stage of his illness. The Board was satisfied on the evidence that QLB’s medical condition will require a range of treatments and therefore a range of medical consents or refusals in the near future. This does not necessarily require the appointment of a guardian, because some treatments may be administered pursuant to section 40 or 41 of the Act.
However, the applicants were concerned that QLB’s upcoming choices about medical treatment are highly complex and that there is a possibility of his will being lost due to the fact that he remains a prisoner with little opportunity to exercise his freedom of decision and action. Pursuant to section 6 of the Corrections Act, the Director of Prisons is responsible to the Secretary ‘for the care and direction’ of all prisoners and ‘for the order and control’ of all prisoners. Ms Maxwell noted that QLB’s death as a prisoner will attract an inquiry by a Coroner, which may present the Director with a conflict of interest in communicating instructions about treatment at the end of his life (e.g. the Director may feel a responsibility to instruct that there be life-saving treatment rather than withhold treatment to promote a quicker death which might be QLB’s preference). The Board accepts that argument.
(iii) The status of a document headed “Enduring Guardianship” with respect to decisions about where QLB shall live temporarily or permanently and his health care:
Some of QLB’s broad preferences for treatment and accommodation options have been recorded in a document incorrectly headed “Enduring Guardianship”. The Public Guardian submitted that this document may be a common law advanced directive and therefore QLB was not in need of a guardian to make the range of decisions to which that document relates. As part of determining whether QLB is in need of a guardian it is necessary to consider the status of this document:
The document is headed “Enduring Guardianship” but it does not in fact name or appoint a guardian and is not registered with the Board. Therefore it does not meet the requirements for an enduring guardianship set out in section 32 of the Act. If it did, there would clearly be no need for the Board to appoint a guardian for QLB.
The first part of the document expresses QLB’s purported views on “Lifestyle directions” in relatively simple language including some preferences between particular Aged Care facilities, funeral and burial arrangements, religious affiliations, entertainment preferences, preferences for colours, temperatures, food and drink. The second part of the document contains “Medical Directives” including nine directions expressed in formal language purportedly expressing QLB’s views on a preference for palliation over life sustaining treatment, a refusal of a percutaneous endoscopic gastronomy tube and various other requests. The second part of the document appears to be formulaic, being expressed in more sophisticated language than the “lifestyle directions” and gives the impression of having been copied from documents popularly circulated amongst members of the medical community as model “advance care directives”.
The Board has no jurisdiction to declare that this document is or is not a valid advanced care directive or if such a creature exists in this form under Australian common law. It would presumably be a matter for the Supreme Court to determine whether a document is or is not a valid advance refusal of certain treatments as and when such decisions arise. Therefore the Board did not examine the circumstances by which this document was created in great detail. Instead, the Board considered whether the existence of this document may diminish QLB’s need for a guardian.
The Board notes the following with respect to the document:
i) Where Australian common law decisions have approved an advance refusal of treatments by a patient who subsequently becomes incapable of giving consent or refusal of treatments, generally those refusals have been of a very specific nature and for very specific purposes (quite often related to Jehovah’s Witnesses refusing blood transfusions for doctrinist reasons). Recent examinations by Australian (single judge) courts in relation to the laws of consent to medical treatment in Hunter and New England Area Health Service v A [2009] NSWSC 761 and Brightwater Care Group (Inc.) v Rossiter [2009] WASC 229 have confirmed the application of fundamental principles applied in landmark cases from the United Kingdom and the United States of America. However, those cases have not laid the foundation to extrapolate from the legally binding nature of a specific refusal of a particular treatment to the kind of document under examination here which contains broad instructions to an unknown audience with respect to an extensive range of personal and medical decisions.
ii) Evidence at the hearing suggested that although this document expressed views about residing in particular Aged Care facilities QLB has not seen any of those facilities. Apparently QLB had adopted those choices on the basis of discussions with a previous case worker. Before relying on this document as a legally binding advance directive (if such a document can extend to accommodation choices), it would be necessary to investigate further the voluntariness of choices expressed in that document.
iii) The document was signed by QLB on 4 July 2012 and witnessed by Dr Chris Wake and Mrs Jill Newell of Mental Health Services. The two witnesses to this document were also the proponents of this application which speaks to their reliance upon the document. Also, on the date that the document was signed, Dr Wake completed the Health Care Professional Report noting significant particular deficits in QLB’s decision making capacity as described in paragraph 6 above.
iv) Particularly with regard to the language used in the second part of the document, the Board notes the contemporaneous medical evidence of QLB’s impaired receptive and expressive communication skills.
QLB has a complicated disease with a range of possible trajectories from this point before his death. The document may be of some assistance is directing a guardian towards carrying out his wishes as far as possible, but the Board was not satisfied that its existence negated the need for a guardian to make health care decisions or decisions about where QLB shall live.
(iv) Decisions about legal processes:
In addition to the matters raised in the application, the Board considered that there may be alternatives to ongoing imprisonment which, if adopted, would be less restrictive of QLB’s freedom of decision and action. An application for parole is not an option by reason of section 69(2)(a) of the Corrections Act, unless QLB is resentenced. QLB would be eligible for resentencing pursuant to the Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994. If he was successful in seeking resentencing, he would most likely be eligible for remission of his sentence or parole, either of which would be less restrictive than the continuation of a sentence for the term of his natural life. Whereas QLB currently has no personal income as a prisoner, if he was paroled or granted remission after resentencing he would receive a pension income. This would also promote his freedom of decision and action.
Dr Wake and others at the hearing were of the opinion that an application for resentencing would take too long to meet QLB’s present needs. However, there is no reason why an application for resentencing could not be made simultaneously with section 36 proceedings or after QLB has been removed from the prison. While Dr Wake’s view is that the section 36 application will be resolved within days, resentencing would better promote his freedom of decision and action in the longer term and should not be ignored as an alternative. Additionally, in the circumstances, competent counsel may be able to make application for fast-tracking such an application.
Those persons who currently care for him, all of whom are employed in the health or prison services, are of the view that QLB has no possibility of being released pursuant to a Royal prerogative of mercy. In light of the nature of QLB’s crimes and his antecedents, that view may well be correct. However, this is a matter that the Board considers should be assessed by independent counsel and, if feasible, should be pursued on QLB’s behalf. The Board was assured that these matters had all been thoroughly explored, however this exploration was not evident from the advice that the Board obtained from the Department of Justice.
From all of the above, the Board concludes that QLB is in need of a guardian to oversee future accommodation and health care decisions and to investigate the legal options available to QLB. The Board considers that appointment of a limited guardian with respect to these domains is in QLB’s best interests and represents the alternative that is least restrictive of his freedom of decision and action. As the legal processes may take some time and health care decisions will be ongoing until his death, the Board considered the order should be made for the maximum period of three years.
The Board would like to note the particularly compassionate, holistic and non-judgmental approach to QLB’s care demonstrated by Ann Marie Mallet, Jo Maxfield, Jill Newell and Dr Chris Wake which is a credit to them, the Prison Service and the Department of Health and Human Services.
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 guardian;
THE BOARD ORDERS
That the Public Guardian be appointed as the represented person’s guardian.
That the powers and duties of the guardian are limited to:
(i)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,
(ii)decisions concerning where the represented person is to live either permanently or temporarily, and
(iii)obtaining legal advice to investigate whether there are any feasible options available to the represented person such as re-sentencing, parole, or seeking a Royal prerogative that would be less restrictive than the current sentence and, if appropriate, instructing a legal practitioner to pursue such an option on the represented person’s behalf.
That the order remains in effect to 30 September 2015.
Anita Smith
PRESIDENT
Statement of reasons requested: 28 October 2012
Statement of reasons delivered: 6 November 2012
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