SM
[2014] QCAT 596
•28 October 2014
| CITATION: | SM [2014] QCAT 596 |
| PARTIES: | SM |
| APPLICATION NUMBER: | GAA3414-14 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 30 July 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Allen |
| DELIVERED ON: | 28 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The appointment of The Public Guardian as guardian for SM for decisions about the following personal matters is continued: (a) Accommodation; (b) With whom SM has contact and/or visits; (c) Health care; (d) Provision of services. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years. |
| CATCHWORDS: | GUARDIANSHIP AND ADMINISTRATION – review of the appointment of a guardian Guardianship and Administration Act 2000 (Qld), s 12, s 31 |
APPEARANCES:
SS, applicant and proposed guardian
SK by telephone
SL by telephone
Lisa Pool from the Public Guardian
REPRESENTATIVES:
Tim Brown representing the Public Guardian
REASONS FOR DECISION
Introduction
SM is 85 years old and resides at an aged care facility. She came to Australia after the Second World War to live with her husband at Maleny and was part of that community until she transitioned to aged care in 2013. SM has five children SS, SK, SF, SKE and SL. While each of them plays a part in her life there is conflict between them and the Tribunal appointed the then Adult Guardian and the Public Trustee of Queensland as decision-makers for her in 2010 and continued those appointments in 2012.
SS has made this application to review the appointment of the Public Guardian due to her concerns in regard to the decision to have SM placed at the aged care facility initially on an interim basis and then later on a permanent basis on 14 May 2014. She has other concerns about the care and treatment her mother is receiving at the aged care facility and that the Adult Guardian is unable to deal with any of these issues in a timely manner as they are bureaucrats in Brisbane. In particular she believes her mother has rejected the facility which she displays by constantly wanting to be taken home to Maleny and waiting outside every day. Her mother lost 5 kilograms following her placement at the aged care facility and despite her informing the facility of her mother’s requirements for dental hygiene she has lost several teeth. She also identified that the cause of her mother not eating properly may have been pain associated with her poor dental hygiene. SM is subject to showering by males and this is said to cause SM great stress and embarrassment, as she is a very private person. There have also been at least two incidents where SS believes unnecessary force was used by the facility in respect of her mother. The first being the day of her arrival at the facility and the second on 21 January 2014.
SS was returning her mother to the facility on 21 January 2014 and was having some difficulty getting SM to go inside. She was approached several times by staff and assured them that she would be able to deal with the matter. The nurse from the area where SM resided then came out with two male staff and SS alleges they physically removed SM from the car and forced her into a wheel-chair and restrained her while she was taken back inside of the facility. SS reported this incident to the Adult Guardian’s office and made a complaint to the Department of Health. The delegate Guardian made a decision without consultation with the family to cancel further visits outside of the facility pending the investigation of SS’s complaint. After the investigation was concluded a further contact decision was made setting up a protocol as to what family are to say to SM to try to ensure that there are no incidents on SM’s re-entry to the facility after an outside visit. Part of this protocol was that if SM had not left the car within five minutes then staff were to be asked to assist. The Tribunal notes that SS had misinterpreted this requirement and thought that SM was to be back inside the facility within five minutes whereas the requirement is only that she have left the car within five minutes.
Prior to SM’s placement at the aged care facility she had been receiving in home care at her house in Maleny. Due to her increased care needs and a reduction in her asset base as a result of providing in-home care this option became financially unviable and a placement in aged care was required. This placement was initially on a respite basis. SS had wanted her mother placed at the Erowal facility at Maleny which she said would have allowed her to remain in contact with friends within the Maleny community and also to visit her house which she had a strong attachment to. She said that her mother would have an opportunity to sort through her papers. The Adult Guardian had rejected the choice of Erowal as the delegate guardian considered that it did not provide care at the level required by SM, which was dementia secure. SS continued to advocate the choice of Erowal at the time of the permanent placement decision on the basis of the issues she had identified with the aged care facility and that there would be no bond required at Erowal which would mean that the house would not need to be sold. Perpetual Trustees, as administrator have made it clear that whether or not a bond is required as soon as SM is permanently placed, the process of selling the house and contents would commence.
The legislation
When reviewing the appointment of decision-maker the Tribunal does so in accordance with s 31 of the Guardianship and Administration Act 2000 (Qld) (GAA Act). That requires the Tribunal to revoke its order making the appointment unless it is satisfied it would make an appointment if a new application were to be made.[1] This then brings in the requirements of s 12 of the GAA Act that is:-
a) Whether or not SM has impaired capacity for personal matters?;
b) Whether there is a need for a Guardian?; and
c) If so who should be appointed?
[1]GAA Act s 31(2).
As this is a review application the Tribunal may only make an order removing the Public Guardian if the it considers the Public Guardian is no longer competent or another person is more appropriate for appointment.[2]
[2]GAA Act s 31(4).
Does SM have impaired capacity?
SM has been attending Dr Sam Hutson, geriatrician since 2008. Dr Hutson has noted a decline in SM’s cognition over the period to April 2014 when she was last consulted about her. In February 2013 Dr Hutson stated that:
She has at least moderate-moderate severely impaired function, given she doesn’t recognise her house as her home, often looks for her parents, and weeds the carpet. Her language is more restricted with word finding difficulties.
Dr Hutson considered that SM has behavioural and psychological symptoms of dementia. Dr Hutson noted in a report of 29 April 2013 that SM had a trip away with family to the Gold Coast with a carer, Helena that did not go well with SM becoming very disoriented and agitated, hardly sleeping at all. Dr Hutson had trialled SM on Aricept to assist with the symptoms of dementia. In June 2013 SM had a fall indoors which Dr Hutson thought was suggestive of a stroke and she noted that it was not clear whether the Aricept had had a clinical benefit and that SM’s cognition continued to decline. Apart from the diagnosis of dementia Dr Hutson had in a report of 7 January 2013 stated that SM had a diagnosis of a major depression, separate to the dementia and possibly Post Traumatic Stress Disorder.
SM has been treated by Dr Lock at the aged care facility since September 2013. Dr Lock was asked by the Public Guardian to provide a report as to the impact a change in residential care facility would have on SM. Dr Lock noted that there had been a deterioration in SM’s cognition over the last five months. Which had resulted in episodes of agitation especially surrounding change e.g. coming back to the facility after an outing with her daughter. Dr Hutson most recent report was dated 20 April 2014 she noted that SM had just started to get lost within her home, and certainly had stopped recognising her house as home – noting that she was asking the carers to take her home when she was in her house. Dr Hutson also noted that when she met SM in 2008 she had an MMSE score of 24/30 indicating minimal cognitive impairment and at that time she had anxiety and a low mood associated with her husband’s relatively recent death and was quite distressed by the disagreement among her children. It is noted that now that she no longer remembers the family issues she is more settled.
A cognitive assessment of SM was performed by Associate Professor Ford on 31 May 2013. He noted that the cognitive decline has been evolving over a five year period and has been gradual in onset. His clinical findings were that she was alert, co-operative and well groomed woman. She found it difficult to follow many of the instructions which he did not think was related to her hearing impairment but rather her ability to comprehend. Her MMSE was 13/30 and on a more detailed cognitive screening (ACE-R) she scored 34/100 with widespread deficits across executive, verbal fluency, language visuo-spatial and particularly memory tasks. In his opinion the history was quite consistent with the clinical findings of dementia, which is of at least moderate severity.
At the hearing SK stated that SM was often waiting for her mother and father to pick her up and that sometimes she does not recognise him for a while. SL also stated that SM often does not recognise her and that at Maleny she had a suitcase and wanted to go home. Initially it was to Townsville where she lived many years ago and now she does not know. She noted that she had taken friends of SM’s to visit her and she did not recognise them. SS stated her mother was not happy, that she rejects her situation as she was in a place she did not want to be and that she wanted to be home in Maleny.
The Tribunal confirms that SM is now a resident in a high care dementia specific facility due to an increase in her care needs. She was no longer recognising her house as home and has a longstanding diagnosis of dementia. The Tribunal is satisfied that as a result of the long term effects of dementia that SM does not have capacity to make personal decisions.
Need for a guardian
The then Adult Guardian was continued as guardian for decisions about accommodation, with whom SM has contact and/or visits, health care and provision of services on 19 June 2012. At the hearing the Public Guardian’s representative stated that since appointment there had not been a lot of decisions and the primary decision had been the accommodation one. There had been some contact decisions and the decision to extract two front teeth. SS has grave concerns about the suitability of the aged care facility in terms of its location and the standard of care. This is reflected in SM’s perceived rejection of the facility and deterioration of her health. Which is exemplified by her weight loss, poor dental hygiene, use of force and constantly wanting to go home. The Public Guardian state that they have no concerns in relation to the care SM is receiving at the aged care facility. She was visited on 4 February 2014 by a delegate guardian and she appeared settled at the facility and was being cared for appropriately. They referred to Dr Lock’s report of 22 January 2014 where she states that she believes SM is currently very well settled at her current accommodation. That she recognises carers and has areas of the facility that she identifies as her own. In Dr Hutson’s report of 20 April 2014 she says she is pleased to hear that SM had settled into the aged care facility.
SM’s children apart from SS stated that SM is unable to live at home due to her degenerative disease and that the aged care facility offers an excellent level of facilities and services. Further that they have been happy with the level of staffing, and the staffs their interaction with their mother, and the staff’s communication with us when we visit. They did not consider Erowal appropriate as their mother required a secured ward and the facilities at the aged care facility were far superior. In regard to the incident of 21 January 2014 SM’s other children stated that they had seen their mother since and that she has no recollection of the incident and has suffered no ill effects from it. They had made a joint decision not to take their mother out on outings as they felt that it was too stressful for her and prefer to use the facilities on site. They also confirmed that SM shows no connection to Maleny and had not done so for at least six months prior to leaving Maleny.
SS does not support the accommodation decision for SM to stay at the aged care facility and applied for a stay of the respite decision and for directions which was dismissed. She wishes SM to be closer to her community and also closer to family members as Tewantin is further away. She also has issues with the use of force and her mother’s rejection of the facility. She notes that there was to be further assessments by an Occupational Therapist at the aged care facility during the respite period which did not occur. She maintains that there is appropriate accommodation for her mother at Erowal. Against this is the opinion expressed by Dr Lock that if SM were to be moved it would take her up to three months not to feel anxious and distressed about her surroundings. The Public Guardian canvassed the opinion of all family members and took into account the doctors views before making the permanent accommodation decision. Currently the only person who feels there is a need for an accommodation decision is SS all other parties are comfortable with the current arrangements.
Following the incident on 21 January 2014 the then Adult Guardian made a contact decision not to allow visits away from the facility pending the investigation of the incident and then later set up an outside visit protocol. The Public Guardian accepts that the decision to cancel outside visits was made without consultation with family. This was on the basis that quick action was needed and it would only be in place for a short time. The decision did not stop family visiting only outside visits. SS had major issues with the protocol which was put in place saying that the time limit of 5 minutes was unworkable and arbitrary. She did not though understand that it was not five minutes to have her mother back inside the facility only to have left the car.
SS also considered that the then Adult Guardian should have investigated the incident. The Public Guardian stated that they gave consent to the Federal Health Complaints Commission to investigate. It was to this body that SS had complained. The Tribunal considers that this was a proper course of action as the Federal body had jurisdiction to investigate the complaint. The use of force is of course a major issue in particular where the persons to whom the force being used on are not able to give a good account of what has occurred. SS did not provide a copy of any report form the Federal investigation so the outcome is unknown. It is hoped that the appropriate action has been taken to ensure that this use of force does not occur again. The protocol around outside visits was also designed to lessen the chances of this occurring. SS considered that SM was being punished by having outside visits denied and then having the protocol put in place. The Tribunal does not accept this the incident involving force was as a result of a return from a visit the transition from which is known to distress SM. It was appropriate that these be stopped while the investigation occurred to ensure such an incident did not occur again. The protocol was then designed to ensure that the chances of SM having a difficult transition were minimised.
There will always be ongoing issues with SM’s care and health concerns. SS is clearly frustrated that when she notices something such as her mother’s dental care not being performed properly or weight loss she is told by the staff at the aged care facility that she is not the decision maker and the matter then needs to be dealt with by someone remote in Brisbane. She considers that the Public Guardian has delegated decision-making to the carers. She recites that the Public Guardian are decision-makers and not case managers which is the mandate that the Public Guardian has. A good example of this is the issue about male carers showering her mother, which she says causes her mother stress and embarrassment. If her mother when able to express her wishes would not have wanted male cares showering her then that should not occur in accordance with the general principles and the Public Guardian must do whatever is necessary to ensure that SM’s care plan reflects this.
SS believes that her mother’s desire to go home reflects a rejection of the facility and a wish to return to Maleny. There is no evidence that this is the case. This behaviour had been ongoing while SM was at Maleny in her own home which is confirmed by her doctor and her other children. The medical evidence is that any further move would cause SM distress and SM’s other children support her continuing to stay at the aged care facility.
The reason that the then Adult Guardian was appointed in 2010 was the conflict between SS and her siblings. SS now says that this is perceived conflict only and that she would be willing to work with her siblings. She says the question for the Tribunal to consider is whether the perceived family conflict is enough to justify the removal of an 85-year-old Japanese woman from her available family support and to justify confining her against her will in a place she does not wish to be. SM’s other children have made it clear that the conflict still exists and that for this reason SS was not an appropriate person to be guardian. There is also no evidence that SM believes she is confined against her will only her behaviours of wanting to go home which she also exhibited at Maleny. That is not to say that SS is not a valuable part of SM life and a good advocate for her. She has raised relevant issues about SM’s weight loss, dignity when showering will ensure as much as she can that she receives good care. The fact that all of her other siblings have diametrically opposed views to her about the appropriateness of the accommodation and quality of her care shows that if she were appointed she would be likely to make decisions which were not supported and may not be in the best interests of her mother.
It is clear that the Public Guardian has had some issues with the accommodation decision in terms of the lack of monitoring of SM while in respite and there needs to be a mechanism to ensure family members have the ability to raise issues in regard to SM’s care and be assured there will be a timely response. There have been no issues raised by SS though which show that the Public Guardian is not competent. SS would say that she is more appropriate. This is not supported by her family who continue to be in conflict with her and the Tribunal does not consider that SS’s interpretation of her mother’s behaviour in terms of indicating a need for another accommodation decision is correct. The Public Guardian will consult with all family members and is available when decisions need to be made. The Tribunal is not satisfied that SS is more appropriate than the Public Guardian. While she wants the best for her mother her ability to consult with her family and her insight into her mother’s needs may not be accurate.
The Tribunal continues the appointment of the Public Guardian for decisions about accommodation, with whom SM has contact and/or visits, health care and provision of services until further order with a review within two years.
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