SBU (Review Guardianship)

CITATION:	SBU (Review Guardianship) [2020] TASGAB 51
HEARING DATE(S):	25 September 2020
DATE OF ORDERS:	25 September 2020
DATE OF STATEMENT OF REASONS:	7 October 2020
BOARD:	Mrs K. Hambly, (Member) Ms V. Jones, (Member) Ms M. Pedersen, (Member)
APPLICATION	Review of Order - Guardianship
CATCHWORDS:	Review of Guardianship Order – scope of powers for restricting visits – acting in persons best interests
LEGISLATION CITED:	Guardianship and Administration Act 1995 (Tas), ss 6, 20, 68
PUBLICATION RESTRICTION:	The decision has been anonymised for the purpose of publication

Statement of Reasons

Background

On 25 September 2020, the Guardianship and Administration Board (‘the Board’) heard two Applications for Review of a Guardianship Order for Mr SBU (‘the Applications’). The Applications were filed by Mr BU and Ms MD, Mr SBU’s son and daughter, respectively.
The initial Guardianship Order was made by the Board at hearing on 8 August 2019 where the Board appointed Ms NQ, Mr SBU’s step-daughter, as the Guardian with limited powers to decide where the Mr SBU is to live permanently or temporarily.
The Order was made for a period of 12 months and remained in effect until 7 August 2020.
The Board reviewed the Guardianship Order on 5 August 2020 following an Application for Review of Order filed by the Guardian, Ms NQ.
The Board determined that Ms NQ was to continue as limited Guardian but varied the Order as follows:
a.NQ is appointed as limited Guardian of SBU with the power to:
i.Restrict visits to SBU to such extent as may be necessary in his best interests and to prohibit visits by any person or prohibit SBU being taken outside of the facility where he is living if the Guardian reasonably believes it would have an adverse effect on SBU.
ii.Make medical treatment decisions for SBU.
The Order was made for a period of 2 years to in effect until 4 August 2022.
On 25 September 2020, the Board heard and determined Mr BU’s Application first. The Board varied the Guardianship Order as follows:
a.NQ is appointed as limited Guardian of SBU with the power to:
i.Decide where SBU is to live permanently or temporarily; and
ii.Make medical treatment decisions for SBU.
As there was no substantial difference between the two Applications to Review the Guardianship Order and all relevant matters had been determined at the hearing of Mr BU’s Application the Board dismissed Ms MD’s Application.
The Board has received a request for a Statement of Reasons from Ms NQ in relation to the determination of 25 September 2020.

Hearing

The Board heard the Applications on 25 September 2020.
Due to COVID-19 restrictions, the hearing was held by way of telephone conference. Those who attended by telephone were:
a.Mr BU, Applicant 1;
b.Ms MD, Applicant 2;
c.Ms NQ, Guardian;
d.Mr ES, Mr SBU’s step-son and brother of the Guardian;
e.Dr Anand Kumar, the treating geriatrician at the Royal Hobart Hospital (‘RHH’);
f.Ms Hui-Yu Yao, RHH social worker; and
g.Ms Kylie Hillier, of the Office of the Public Guardian.
The Board had before it the following documents:
a.Guardianship Order dated 5 August 2020;
b.Application for Review dated 20 August 2020 by Mr BU;
c.Application for Review dated 20 August 2020 by Ms MD;
d.Regulation 4(3) statement dated 20 August 2020 by Mr BU;
e.Regulation 4(3) statement dated 20 August 2020 by Ms MD;
f.Health Care Professional Report (‘HCPR’) dated 24 May 2020 by Dr John Oxford;
g.Enduring Power of Attorney dated 6 September 2017 by Mr SBU;
h.Private Guardian’s Report dated 10 Jun 2020 by Ms NQ;
i.Submission dated 9 September 2020 by Ms KT;
j.Submission dated 10 September 2020 by Ms NQ;
k.Affidavit dated 17 September 2020 by Mr BU;
l.Affidavit dated 17 September 2020 by Ms MD;
m.Statement of Reasons dated 8 September 2020 by the Board;
n.Submission dated 24 September 2020 by Ms KT; and
o.Submission dated 24 September 2020 by Ms DB, nurse at [the Aged Care Facility]

Legislation

Pursuant to section 68 of the Guardianship and Administration Act 1995 (‘the Act’) the Board on a Review of Order Application may vary, continue or revoke the Order.
When the Board assesses an Application for Review of a Guardianship Order it needs to be satisfied, in accordance with section 20 of the Act, that the proposed represented person, in this case Mr SBU:
a.is a person with a disability;
b.is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to her person or circumstances, and
c.is in need of a guardian.
The Board must also balance the principles in section 6 of the Act, which are:
a.the means which is the least restrictive of the proposed represented person's freedom of decision and action as is possible in the circumstances is adopted;
b.the best interests of the proposed represented person are promoted; and
c.the wishes of the proposed represented person are, if possible, carried into effect.

Evidence

Person with a disability:

The Board had before it the HCPR by Dr Oxford. Dr Oxford reported that he had known Mr SBU for nine months and concluded that he had a diagnosis of advanced Alzheimer’s dementia which had been evident for several years and was progressively deteriorating.
All parties accepted Mr SBU’s diagnosis of advanced Alzheimer’s dementia.
The Board was persuaded by the medical evidence of Dr Oxford and satisfied that a diagnosis of Alzheimer’s dementia fell within the definition of disability under the Act and determined that Mr SBU was a person with a disability.

Ability to make reasonable judgments:

The HCPR of Dr Oxford reports that Mr SBU’s disability has produced significant deficits in his orientation to person, place or time, impulse control, capacity for new learning, susceptibility to influence and planning and reasoning skills.
At the hearing, Dr Kumar, Mr SBU’s treating geriatrician at the RHH, gave evidence that Mr SBU has recently been admitted to hospital on the background of behavioural and management issues. Dr Kumar stated Mr SBU displays aggression and anxiety which initially required chemical restraint but his condition has since improved and is now stable.
Dr Kumar stated that Mr SBU needs ongoing 24 hour support, that his baseline is unlikely to change and that he has a neuro-degenerative disorder with a life span of around 7 to 10 years from date of diagnosis. Dr Kumar was of the opinion that Mr SBU currently sits somewhere in the middle of this timeframe.
Dr Kumar concurred with Dr Oxford confirming Mr SBU’s deficits in orientation and short term memory loss. Dr Kumar also gave evidence that Mr SBU currently requires support with his personal care and is ‘exit seeking’ which requires de-escalation strategies when being redirected.
Dr Kumar gave evidence that there are various types of aggression which fall under the dementia umbrella and said he was of the opinion that Mr SBU is demonstrating one of the more severe types.
The parties accepted Dr Kumar’s evidence and he was released from the hearing so that he could attend to his medical duties.
The Board is persuaded by the evidence in relation to longevity of diagnosis, symptoms and impact on reasoning skills from Dr Oxford and Dr Kumar and determines that Mr SBU is unable to make reasonable judgments due to his disability.

Continuing need for a Guardian

Turning firstly to the issue of accommodation. The evidence at hearing established that Mr SBU is prone to very aggressive bouts of behaviour and in one particular incident he forcefully banged another residents head on a table. Ms KT’s evidence, on the papers, has indicated that this behaviour is unmanageable. [the Aged Care Facility] have attempted to put several management plans in place but just prior to the hearing Mr SBU was re-admitted to the RHH for behavioural management and [the Aged Care Facility] said that he would be unable to return to their facility.
At the hearing, Dr Kumar gave evidence ruling out the need for transfer to the Roy Fagan Centre but has recommended that Mr SBU be moved to a secure aged care facility. The timing of this move is unknown and investigations are ongoing, although the Guardian is considering [another Aged Care Facility]. Mr SBU does not appear to be objecting to a move and is settled where he is, however, this is a short term option and as stated earlier, Mr SBU has been attempting to the exit the ward and becomes irritable when re-directed. The move to a secure unit appears imminent and is supported by all the parties who believe this move will be in the best interests of Mr SBU.
The Board is informed by the papers and evidence at hearing that Mr BU and Ms MD live in mainland Australia and are the product of Mr SBU’s first marriage. Mr SBU married Ms NQ’s mother, Mrs DNU, when Mr BU and Ms MD were young teenagers. There appears to have been family disharmony as a consequence which resulted in Ms MD being prevented contact with her father by Mrs DNU.
Mrs DNU died in October 2019.
Mr BU gave evidence that he visits his father approximately every two years with follow up phone calls on average once a fortnight. He also states that his father had occasionally visited him on the mainland.
Ms NQ disputed this degree of contact on the basis that she has known Mr SBU for some forty years and not witnessed any regular contact between Mr SBU and his son in the thirty years that she lived at home.
Mr BU stated that he last saw his father in December 2019 and stated that further visits have been thwarted by the COVID travel restrictions.
Ms MD stated that she last saw her father in 2018 at Avoca. This was a difficult meeting because she was prevented from visiting the family home and the meeting was orchestrated by Mrs DNU. Ms MD believed the meeting went well despite Mr SBU initially not being able to remember who she was, although this was rectified when her identity was clarified by her brother. When Mrs DNU died, Ms MD felt this was an opportunity to re-connect with her father. Her last phone call with him was on 5 August 2020.
Ms NQ disputes Ms MD’s account. Ms NQ asserts that there was some contact in the 1990’s and 2000 and then no contact until the meeting at Avoca some 18 years later. At this meeting Ms NQ stated it established that Mr SBU did not recognise Ms MD and that his daughter did not attempt to contact him again until a year later in November 2019.
Both Applicants gave evidence that there had been multiple unsuccessful attempts to establish telephone contact with Mr SBU at the [the Aged Care Facility] since the Guardianship Order was varied on 5 August 2020.
Ms NQ gave evidence of occasions when she had facilitated or attempted to facilitate telephone contact between the Applicants and Mr SBU.
Mr BU’s Application requested that he be considered for appointment either jointly or in place of Ms NQ as Guardian for his father.
Mr BU was advised as to section 20(6) of the act which states: ‘two or more guardians of a person, each with different functions, may be appointed under one or more limited guardian order’ and was invited to identify the decisions he would like to have power to make.
Mr BU stated that he would like to be involved in decisions about where his father was to live and who could have contact with him. Mr BU stated that he had attended the initial hearing when Ms NQ was appointed Guardian and had accepted that he would have limited input in decisions but had expected to be provided with more information than he currently receives.
Mr BU and Ms MD both gave evidence that they had been attempting to make regular contact with Mr SBU whilst he was a resident at [the Aged Care Facility] but were informed that they needed to seek permission from Ms NQ.
As stated in paragraph 5 above, the Order had been varied, authorising Ms NQ to restrict and prohibit visits to Mr SBU.
Ms NQ had requested the variation following an incident on 12 December 2019 where Mr BU had visited and decided to take his father out of [the Aged Care Facility] for the morning, against the advice of [the Aged Care Facility] nursing staff despite two requests not to do so. Mr BU was informed that there was a gastro-enteritis outbreak which [the Aged Care Facility] was trying to contain. [the Aged Care Facility] recorded that Mr BU became aggressive and Ms KT’s written evidence indicated that when she was trying to dissuade Mr BU she ‘felt there was a potential threat to me [sic] if I persisted.’
Ms NQ reported that the [the Aged Care Facility] notes for that date indicated her father was unsettled when he returned and did not appear to know who he had been with or where he had been taken.
The Statement of Reasons pertaining to the hearing of the 5 August 2020 concluded:
The Board heard evidence of Mr SBU being taken out of the RACF by his son, contrary to the advice of nursing staff. This had an unsettling impact on Mr SBU, and if repeated would most likely cause a similar response, particularly given his current behaviours and the fact he is not orientated to person, place or time. The Board notes the Applicant has accepted the medical advice not to take Mr SBU outside of the RACF. The Board is satisfied that a guardian should have a power to restrict visits to Mr SBU or restrict him being taken outside the RACF.
Mr BU, at hearing spoke with candour regarding this incident and acknowledged that, in hindsight, he had made the wrong decision and given a similar set of circumstances he would not make the same decision again. He denied any aggressive behaviour and questioned the term ‘outbreak’ since he had been informed that there was only one resident diagnosed with the gastro ailment which he asserted did not amount to an ‘outbreak’.
The Private Guardian’s Handbook, which is the reference tool for Guardians appointed in Tasmania, states the following:
An access role is given to a guardian when there is a need to decide with whom the person with a disability should have contact.
An access role gives you the authority to:
·Decide who can visit the represented person, and who the represented person can visit.
·Decide who the represented person can have contact with via telephone or other electronic devices
Ms NQ stated that she had decided to limit telephone contact with her father following discussions with Mr SBU’s treating team and [the Aged Care Facility] staff who suggested that these contacts were distressing for Mr SBU. Ms NQ reported that her father struggled to use a telephone and required direction on every occasion of use. The Board was also informed by Ms NQ and via the papers in a statement from Ms KT, that advanced Alzheimer’s patients do not have a mobile phone because this can be distressing. In these circumstances relatives speak to their family members via the [the Aged Care Facility] phone, which must necessarily be kept short, in case [the Aged Care Facility] need to use this phone to provide their staff with directions. Ms KT stated there was only one phone available for use by staff which is the same phone used to facilitate these calls to residents.
Ms NQ asserted that these phone calls act as a trigger to Mr SBU’s aggressive behaviours although this was not conclusive and was denied by both Applicants who described their phone calls with their father as congenial.
The Public Guardian was supportive of the need for a Guardian to make accommodation decisions. The Public Guardian also advised that since a move to a secure unit is imminent the Board might be mindful that these specialist units are adept at controlling the liberty of the person, which would frustrate attempts by any party to remove a client from the facility. The Public Guardian was able to provide further insight into the expertise within these units and indicate they are highly experienced in managing and assessing personal and telephone contact, are very familiar with dealing with complex family dynamics and can monitor and immediately intervene when a patient becomes distressed or starts to react in an adverse manner.
All parties were invited to make comment on the Public Guardian’s observations. Mr BU agreed with the Public Guardian and was supportive of her appointment as an independent guardian. Ms MD agreed with the Public Guardian but accepted that Ms NQ was doing a good job as the Guardian and stated she just wanted more contact with her father. Ms NQ stated she was happy to go with whatever was in her father’s best interests but believed she was the best person for the appointment based on her close and longstanding relationship with Mr SBU.

Enduring Power of Attorney

Mr SBU executed an Enduring Power of Attorney (EPOA) on 9 October 2017. The EPOA appointed his wife Mrs DNU as his attorney and Ms NQ as his substitute attorney should his wife pre-decease him.

Conclusion

The Board was aware that a large part of the evidence was in relation to the lack of communication between the parties and a difficult family dynamic; however it is not the Board’s function to act as a mediator. The Board is only concerned with the principles and powers discussed in paragraphs 13 to 15 above.
The Board was satisfied by Drs Oxford and Kumar’s evidence that Mr SBU is a person with a disability and by virtue of that disability is unable to make reasonable decisions.
The Board was also persuaded by the evidence of Drs Oxford and Kumar that SBU’s condition continues to deteriorate. The Board understood from Ms KT’s evidence that Mr SBU can longer be cared for at the [the Aged Care Facility] and Dr Kumar’s evidence indicated that a secure specialist dementia facility would be a more appropriate fit.
Given that Mr SBU does not have capacity to make accommodation decisions and is demonstrating ‘exiting’ behaviours on the ward it is highly likely that he may not consent to a move to a new facility, the Board is therefore satisfied that a substitute decision maker is necessary for accommodation decisions. For the same reasons, concomitant with the advanced behavioural issues which have been of sufficient seriousness to require hospitalisation for management, the Board is satisfied that there is a continuing need for a substitute decision maker for medical treatment decisions.
The Board then considered who the appropriate Guardian is.
Ms NQ has been the Guardian for Mr SBU for slightly over 12 months and both Applicants have indicated that she has largely been doing a good job as a Guardian. The contentions seemed to arise once Ms NQ was given the access powers. These powers were authorised by the Board in response to a family member removing Mr SBU from [the Aged Care Facility] against medical and staff advice. That family member at this hearing commendably accepted it was a mistake and gave an undertaking that this would not occur again. The Board also heard that Mr SBU is to be moved to a secure facility and the Public Guardian was persuasive in their account that because of the security measure adopted by these specialist facilities it is unlikely a family member would be able to remove Mr SBU from the facility given similar circumstances. The Board is therefore persuaded that a need for restrictive access powers is no longer necessary and determine it to be removed from the Order.
The Board gave both Applicants the opportunity to identify if or where the Guardian had acted inappropriately or not in the best interests of Mr SBU. No evidence was forthcoming. The Applicants asserted that Ms NQ’s actions in preventing their contact with Mr SBU were tantamount to not acting in his best interests but Ms NQ was authorised under the Order to make the decision to restrict visits which she did based on medical evidence and has not therefore breached any duties under the Act.

The Board considered Mr BU’s Application to be appointed as Guardian. Mr BU was unable to identify a different functional need for a second Guardian which is necessary if the Board is to appoint two persons. The Board therefore went on to consider if there were grounds to remove Ms NQ and appoint Mr BU. Mr BU failed to establish any grounds beyond the previously mentioned restricted contact and acknowledged some contact had been facilitated and that it was the inconvenience of having to arrange calls through the Guardian which became the issue. Ms NQ gave account for her reasons for imposing these restrictions and she had not acted outside her powers authorised under the Order.
The Board therefore concludes that Ms NQ is a suitable person to continue in the role of Guardian and did not appoint Mr BU.
The Board was persuaded that the move to a secure aged care facility was imminent and therefore when considering the duration of the Order was satisfied that 12 months was sufficient to allow this transition and provide Mr SBU the time to settle and the staff and family an opportunity to accurately assess his future needs.
Given that the Applications were filed at the same time, were substantially the same and neither party was able to identify a point of difference between the two, the Board concluded that the determination of the Mr BU’s Application removed all points for consideration raised by the second Application and dismissed this accordingly.

Orders

The Guardianship Order for SBU made on 5 August 2020 has been reviewed and varied and from this day the Order is:
a.NQ is appointed as limited Guardian of SBU with the power to:
i.Decide where SBU is to live whether permanently or temporarily.
ii.Make medical treatment decisions for SBU.
This Order remains in effect to 24 September 2021.
The Application for Review of Guardianship Order filed by Applicant MD is dismissed.
*****

[2020] TASGAB 51

25 September 2020