QNH (Emergency Guardianship)
[2012] TASGAB 12
•4 June 2012
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
QNH – Emergency Application for appointment of a guardian by Department of Health and Human Services
Neutral citation: QNH (Emergency Guardianship) [2012] TASGAB 12
REASONS FOR DECISION
Anita Smith (President)
Date of decision: 4 June 2012
Guardianship – Emergency application – Elements of appointment of a guardian – Urgency arising from need to place an elderly man with specific needs in residential care – Least restrictive alternative
Guardianship and Administration Act 1995 s.20, 65
On 4 June 2012, the Board received a written request from a staff member at the Roy Fagan Centre for the making of a guardianship order pursuant to emergency provisions in section 65 of the Guardianship and Administration Act 1995 with respect to QNH.
The circumstances of this application were that QNH, an 86 year old man, had been in hospital for a considerable period of time because health professionals were of the opinion that he was not safe to return home, but he was refusing residential aged care. A room had been offered in an aged care facility that met specific requirements set out by caring family members, and the benefits of such a room might have been be lost to QNH if not accepted within a very short period of time. Due to his refusal, a guardian was sought to accept the room on his behalf.
The Board must assess a request for an emergency guardianship order against the same criteria as for the making of an ordinary guardianship order, that is that the person who is the subject of the application (i) is a person with a disability, (ii) which renders them unable by reason of the disability to make reasonable judgments in respect of all or any matters relating to his person or circumstances, and (iii) is in need of a guardian. However, the Board must also be satisfied that it is proper to make an order for reasons of urgency. In such circumstances the Board is not required to convene a hearing but may make enquiries and take information as it thinks appropriate.
Does QNH have a disability?
The application was accompanied by a pro forma Health Care Professional Report completed by Dr Jane Tolman, the Director of Geriatric Medicine at the Royal Hobart Hospital. Dr Tolman indicated that QNH has vascular dementia and, as a result of a stroke 19 years ago, he is dysphasic and has right side hemiplegia. She noted that his condition is deteriorating. The Board is aware from previous applications that Dr Tolman has extensive experience in diagnosing dementia and the Board assumed that this report reflected her considered medical opinion. From this report, the Board concluded that QNH has a disability.
Is QNH unable by reason of the disability to make reasonable judgments in respect of all or any matters relating to his or her person or circumstances?
- Dr Tolman’s report noted that QNH experiences a range of deficits as a result of his disability. In particular she noted that he lacks insight, judgment, planning and reasoning abilities. She noted that he needs full time aged care but will not agree. Dr Tolman’s report was supported by a written report from Megan Benier, Senior Social Worker at the Royal Hobart Hospital. The application also noted the concurrence of Dr Janine Skelton Staff Specialist in Geriatric Medicine but, as the Board had not seen her report, such references were not taken into account. The Board was satisfied on the basis of the Tolman and Benier reports and the written application that QNH may lack the ability to make reasonable judgments in respect of matters relating to where he will live permanently or temporarily and the level of care that he requires.
Is QNH in need of a guardian?
According to the application QNH:
·Requires two persons to assist him to transfer to a ‘stedy’ style hoist when moving from one position to another, but denies having any physical deficits
·Is incontinent of faeces and has regular episodes of diarrhea
·Cannot independently toilet or attend to his hygiene
·Will not accept nursing home care.
Dr Tolman’s report also noted that QNH has been assessed by the Aged Care Assessment Team as requiring high level care. However, the application notes that QNH wishes to return to his home where support has been provided by his three nieces on a roster basis. According to the application, QNH’s nieces have been providing assistance for him for many years but are unable to meet the demands associated with caring for him at home any longer. In addition to caring for him, they care for another elderly relative, so have very heavy responsibilities.
Dr Tolman and Ms Benier’s reports provided unequivocal professional opinion that QNH is in need of residential aged care in a high care facility. At the date of the application, QNH had been in hospital since 28 March 2012. According to the application a suitable room had been located at XXXX which met a number of specific requirements such as:
· The facility can provide the high level care assessed as necessary for QNH.
· The facility is close to nieces D, E and L and this would enable their continued contact and support.
· It was a single room, whereas most rooms in that facility are shared.
The Board was advised that the treating team had been negotiating with QNH for a voluntary transfer from the hospital since March 2012 without success. They had also attempted rehabilitation to improve his level of functioning so that it might be safe for him to return home, but this too had been unsuccessful.
The application clearly demonstrated that a decision needed to be made about QNH’s accommodation. The Board was satisfied that (i) it was unlikely to be possible for QNH to return home, (ii) a continued stay in hospital was unsustainable and unsuitable, but (iii) he objected to moving to an aged care facility as he repeatedly stated “no nursing home”. Decisions about accommodation (especially where they are to be enforced against the will of the proposed resident) are not within the purview of a ‘person responsible’ or a relative. In circumstances where a person who is incapable of making the relevant decision objects to proposed accommodation only a guardian can provide consent on his or her behalf.
In considering what is least restrictive of QNH’s freedom of decision and action, the Board noted that remaining in hospital until the current impasse is resolved would be a particularly restrictive outcome for him, as it may never be resolved given his lack of insight. Either of the possible decisions by a guardian, that he should return home or that he should live at XXXX, would be less restrictive than remaining in hospital indefinitely with its limitations on his recreation and his freedom of movement.
The Board also notes that in a significant proportion of orders made in similar circumstances, after an initial protestation, the resident finds residential aged care to be far more acceptable than anticipated and thereafter volunteers to remain in aged care facilities without the need for an ongoing guardianship order. At times, an emergency guardianship order can prove to be a necessary ‘short, sharp’ response that overrides the person’s temporary objection to aged care for a short period of time and is not needed thereafter. A 28 day order is far less restrictive than a longer term guardianship order.
The Board also considered that appointment of a guardian at this point would be in QNH’s best interests as, if the opportunity to accept the room at XXXX is lost at this stage, he may be forced at a later date to accept a less suitable room in that facility or a room in another facility. The application noted the importance of the geographical proximity to QNH’s nieces afforded by the facility at XXXX. As his relationship with his nieces has clearly been very important to his well-being, placement in an alternative facility further away from them would not serve his interests as well. Therefore the Board was satisfied that QNH was in need of a guardian to make decisions about the proposed move to XXXX.
Were there reasons of urgency?
The Board took into account that QNH had been hospitalised for 69 days and, during that significant period of time, it had not been possible to negotiate future accommodation with QNH. It also took into account that the room offered by XXXX had special features which made it exclusively acceptable to close members of QNH’s family. The Board was informed that unless the room was accepted on QNH’s behalf it would very shortly be offered to another person. If that occurred, QNH and his family might wait a significant period of additional time (presumably with him remaining in hospital) until another suitable room was offered in that facility or have to accept an unsuitable room in that or another facility.
The Board noted that making an order in circumstances of urgency denies QNH the opportunity of responding to an application at a hearing. Noting that applications generally take between 30 and 45 days to be heard, it is clear that waiting for the usual application, investigation and hearing process would render the guardian’s decision illusory as, by the time the Board made a determination following a hearing, the room at XXXX would be occupied by another person and not available for QNH. The special features of the room arise sufficiently infrequently, in the Board’s view, as to warrant an urgent response. Therefore a decision to accept or not accept the offer of a room in XXXX had to be made urgently.
Conclusion:
The Board was satisfied that there were reasons of urgency surrounding the making of a decision about QNH’s future accommodation and that there may be grounds for making a guardianship order. As a consequence of that decision, the Public Guardian was appointed with powers limited to decisions about where QNH is to live, whether permanently or temporarily. Section 65 does not allow eligibility of any other person as guardian, however it is noted that the application stated that QNH’s nieces preferred the appointment of an independent party to make the decision about where he should live so as not to undermine the positive relationship that they have with him.
In accordance with the Board’s usual practice, the Board issued a direction to the guardian to take all reasonable steps to ensure that an application for guardianship is completed before the expiry of the order and also required a report to the Board after 25 days. If an ongoing order is not required, then it is reasonable that no steps need be taken in that regard.
Anita Smith
PRESIDENT
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