Re BSK - [2013] QCAT 218

CITATION:

Re BSK [2013] QCAT 218

PARTIES:

BSK

APPLICATION NUMBER:

GAA1045-13 and GAA1046-13

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

12 March 2013

HEARD AT:

Cairns

DECISION OF:

Mr Jim Allen, Presiding Member
Ms Deanne Drummond, Member

DELIVERED ON:

23 April 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

Guardianship

1. The Adult Guardian is appointed guardian for BSK for decisions about the following personal matters:

(a) Accommodation;

(b) Health care;

(c) Provision of services.

2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is reviewed in two (2) years.

Administration

3. The application for the appointment of an administrator by BST is dismissed.

CATCHWORDS:

Application for guardianship and administration – section 12 Guardianship and Administration Act 2000

APPEARANCES and REPRESENTATION (if any)

The following people were present at the hearing:

BST, husband of BSK
Dr DN, treating general practitioner of BSK
Ms Jane Deszeny, representing the Adult Guardian

REASONS FOR DECISION

BSK is 55 years old and is in very poor health in particular she has liver failure. Her prognosis is very poor if she does not discontinue her consumption of alcohol. She has a history of numerous hospital admissions to enable her to detoxify but she is unable to stay alcohol free. The application was due to serious concerns that the appointment of a guardian was the only way to save BSK’s life because she was refusing admission to hospital for urgently needed medical care for liver failure.
When considering the appointment of decision-makers, guardians and administrators, the Tribunal is required to be satisfied of the matters set out in section 12 of the Guardianship and Administration Act 2000 that is:
a)Whether or not BSK has capacity for decisions about both personal matters and financial matters;
b)Whether there is a need for decisions in regard to those matters and whether without an appointment her needs can be adequately met and interests adequately protected; and
c)If there is a need for a decision maker, who should be appointed to the role.
There is a presumption of capacity and that presumption must be rebutted before the Tribunal can consider an application further. In this case the medical evidence has been provided by Dr DN, who has been BSK’s treating doctor for 9 years. At the time of Dr DN’s report BSK had been drinking for five weeks and was not eating. Dr DN stated that when sober this patient functions well and is an intelligent woman but years of substance abuse are taking its toll on her brain function. She was said to have limited capacity concerning personal health care due to her intoxication and severe liver derangement. Dr DN’s opinion was that she was able to make simple personal health care decisions only. This is in the context of BSK refusing to be admitted to hospital for urgently needed medical care for liver care as mentioned above. This is stated in BSK’s application in terms of her being at immediate risk. It was noted that BSK was confined to her bedroom at the time and her husband took care of her finances when she was intoxicated. It was said she was not able to make lifestyle/accommodation or financial decisions at the time of the report.
Dr DN provided the Tribunal with a series of doctors reports and hospital discharge summaries which confirmed a history of BSK seeking medical assistance for her drinking and then relapsing with a serious decline in her liver function.
Prior to the time the Adult Guardian had been appointed as guardian for BSK for decisions about health care and the provision of services on an interim basis, that is on the basis that urgent action was required. A report was provided by the Adult Guardian representative which noted that BSK had recently been admitted to hospital for acute alcohol detoxification and that the Adult Guardian had made the decision for her not to be discharged to her home but to be transferred to a Clinic for rehabilitation. The Adult Guardian was advised by Dr XC, the treating doctor at the base hospital, that BSK has 5% liver function left and if she continues to drink she only has 6-12 months left to live, whereas if she abstains from drinking this may increase to 3-4 years.
A current psychological capacity assessment was requested by the Adult Guardian and this was performed by Dr XT and summarised in the Adult Guardians report. Dr XT confirms that she repeatedly makes assurances to not drink and acknowledges that alcohol is a problem and that she quickly relapses. That she is not amenable to gaining entry to a long-term residential alcohol rehabilitation program. There are nil psychotic features or frank depressive features. That she has partial insight and agrees to treatment yet has limited insight regarding denial and minimisation. That BSK’s judgment is impaired by her current cognitive function.
Dr DN confirmed at the hearing that BSK continues to refuse necessary services and that while she may currently be detoxified she quickly relapses and each time she does so she causes more brain and liver damage. BST accepted that his wife was unable to make appropriate decisions concerning her care.
While alcoholism in itself is not usually accepted as a cause of impaired capacity the Tribunal in this case is satisfied that, as a result of the ongoing effects of alcohol consumption, BSK lacks insight into her health situation and is not able to understand the nature and effect of decisions required in regard to her necessary withdrawal from alcohol to preserve her life. This then rebuts the presumption of capacity in regard to personal matters.
While BSK’s capacity in regard to financial matters would, in the opinion of Dr DN, be impaired while she was unwell the Tribunal notes that BSK granted an enduring power of attorney to her husband on 2 September 1996. BST indicated to the Tribunal that he was able to make any necessary financial arrangements for BSK under the enduring power of attorney and so that application was dismissed.
In terms of the need for decisions in regard to personal matters, Dr DN stated at the hearing that BSK requires intensive alcohol counselling to enable her to have a chance of more than short term survival and this would involve health care accommodation and service provision decisions. The Tribunal accepts that these are the decisions which any guardian would be required to make for BSK.
In terms of who to appoint as guardian BSK proposed himself for the role. There is no doubt that he has a strong wish to ensure that she receive appropriate care and that he would do his best to make appropriate decisions on her behalf. Unfortunately, there is a history of him facilitating his wife’s consumption of alcohol with the desire of ensuring that she would not drive a motor vehicle and put herself and others at risk. So while he tries to do the best for her his own insight into her care needs may be lacking as it is clear that what is required is inpatient treatment and complete abstinence from alcohol. Neither of the Adult Guardians’ representative or Dr DN were unable to support BST for appointment as guardian.
It will be important for BSK to obtain support from her husband at this difficult time and this support may be compromised if he is the one making decisions which she does not support however necessary they are.
The Tribunal notes that the Adult Guardian is the guardian of last resort and is satisfied that there is no family member able to undertake the role of guardian that the Adult Guardian be appointed as guardian for BSK for decisions about accommodation, health care and the provision of services.