UF – Application for Guardianship - [2018] TASGAB 3

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

UF – Application for Guardianship

REASONS FOR DECISION

Before: Sandra Taglieri
Juanita Westbury
Carolyn Wallace

Guardianship – notice of hearing to the proposed represented person (PRP) and attempts to seek his participation at hearing – risk to PRP’s health – refusal of PRP to receive support from services and refusal to obtain healthcare and treatment deemed necessary
Guardianship and Administration Act 1995

On 19 January 2018 the Guardianship and Administration Board (the Board) heard an application for appointment of a guardian for UF, aged 19 years and born on 16 November 1998 (“UF”). The application had been made by UF’s father, EF. The written application dated 8 December 2017 was accompanied by a number of documents which were relied upon by the applicant. Those documents included the following:
a)Health Care Practitioner Report dated 7 December 2017 from Dr Peter Baratosy;
b)letter dated 8 August 2016 by Dr Josephine Topp, a Child and Adolescent Psychiatrist;
c)letter from Dr Peter Baratosy dated 21 November 2017;
d)letter dated 8 December 2017 from Dr Peter Wurth a Consultant Psychiatirst;
e)letter from John Sheridan, Anglicare Tasmania Inc, who had been the NDIS co-ordinater of supports for UF for a time;
f)report from the Office of the Public Guardian dated 24 May 2017 authored by Ms Liz Love, who had been appointed as a limited guardian pursuant to an emergency guardianship order on 26 April 2017.
The Board noted that on 8 January 2018 notice of the hearing to be held on 19 January 2018 had been sent to the applicant, UF, the Public Guardian’s Office, Dr Baratosy, Dr Ian Wilson, Dr Peter Wurth and Mr Jonathon Sheridan. The Board’s records disclosed that all documents referred to at paragraph 1 had been sent with the notice of hearing on 8 January 2018.
Before the hearing, Dr Baratosy and Dr Wurth had advised that they did not intend to participate in the hearing.
When the application was called on for hearing, the applicant and Ms Love from the Office of the Public Guardian appeared and participated. There was no appearance by UF and the applicant advised that his son was aware of the hearing as he had seen correspondence from the Board at his flat and had spoken with him about the hearing. He informed the Board that from discussion with UF, he was expecting he would attend the hearing.
An attempt to facilitate UF’ participation in the hearing was made by telephoning his mobile telephone number. The call to UF’ mobile telephone number went unanswered. The applicant also informed the Board that UF had from time to time used an Advocate, Ms Arial Duharte to assist him. As the Board had a telephone number for Ms Duharte, she was also telephoned to endeavour to facilitate representation of UF at the hearing. Ms Duharte advised that she had no knowledge of UF requiring or wanting her to support or represent him for the purposes of the hearing. She advised that she had not been in contact with UF for some time and declined to participate in the hearing.
The Board was satisfied that UF had been given notice of the hearing. It noted the information provided by the applicant and also the duration of the period since the letter of 8 January 2018 had been sent.

Statutory requirements for making guardianship order

Section 20 of the Guardianship and Administration Act 1995 (the Act) provides as follows:
(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.
The power to make a guardianship order pursuant to section 20 of the Act requires the Board to be satisfied of factual matters contained in subsections (a) – (c) and if so satisfied requires the Board to decide whether it ought to exercise a discretion by making an order. Whether there should be exercise of discretion is directed and informed by subsections (2), (3), (4) and (5) of section 20.

Content and nature of materials before the Board

The application filed by EF was very comprehensive. It asserted that UF had autism spectrum disorder, obsessive compulsive disorder, morbid obesity with co-morbidities of diabetes type 2 and oedema in both legs. The applicant’s motivation for applying for guardianship was stated to be “for three years UF has deliberately eaten and rapidly grown obese, stopped exercising, declined study, ignored parental advice and serial GP’s advice”. Further, the application included statements of concern that whilst living in his own flat although being supported by NDIS, UF had attempted suicide by cutting his throat in January 2017, required surgery and hospitalisation.
EF confirmed the accuracy of all contents of the application, including that UF did not monitor blood sugar levels, weighed 135kg, had a dysfunctional attitude or awareness towards his chronic medical conditions and appeared not to comprehend personal care needs and eating requirements to avoid morbid obesity, diabetes and oedema. There was reported to be a 30% reduction in his throat capacity which had caused breathing difficulties. EF stated that while UF was on the emergency guardianship order he responded reasonably to decisions made by the Guardian, but had since lapsed after the order expired.
The application also contained extensive information conveying that UF’ parents had exhausted their ability to assist UF address his health issues and they had grave concerns for UF’ capacity to make reasonable judgments about his personal health and particularly eating and the inevitability of death if this was not addressed.
The Board considered the health care professional report of Dr Baratosy who had been UF’ GP for a period of four months. Dr Baratosy had last personally examined UF on 1 November 2017 and he opined that UF suffered from disability, namely intellectual disability diagnosed as autism spectrum disorder and psychiatric disability diagnosed as obsessive compulsive disorder. As to prognosis, Dr Baratosy observed that UF’ physical health is deteriorating due to his disability and that UF was not willing to change his diet as required to treat and improve his diabetes and obesity. In Dr Baratosy’s view there was deficit in planning and reasoning skills that affected UF’ ability to make reasonable decisions about his health.
In direct response to whether UF could make reasonable decisions about where he should live permanently or temporarily Dr Baratosy stated “yes – but has limited ability to attend to personal care and care of his residence”. In direct response to whether UF could understand the nature and effect of medical treatment Dr Baratosy answered “yes and no – part of medical treatment is diet and lifestyle changes, he realises this and unwilling to make the change”.
In relation to whether UF was able to make reasonable decisions about other matters, for example relationships, visits by friends or relatives and employment Dr Baratosy replied that he was “unsure”.
Dr Baratosy’s letter of 21 November 2017 supported appointment of a guardian. Dr Baratosy referred to UF’ suicide attempt and the management plan implemented thereafter, being that discharge from the psychiatric facility at the hospital was on the understanding that he would co-operate with support staff and services, but that this has not eventuated. Dr Baratosy identified that Aspergers and OCD were impairing UF’ judgment. Dr Baratosy supported the application for guardianship because in effect UF could not and would not look after himself which was leading to deterioration in health which would certainly lead to an early death.
Information received from the NDIS co-ordinator of supports, Mr Sheridan identified that he had met with UF over twenty occasions since July 2017. UF had since chosen to withdraw from his support and all funding within the NDIS plan had been spent. Mr Sheridan’s report generally observed that UF required greater supports via the NDIS, but given UF’ attitude and withdrawal from acceptance of assistance his physical and mental wellbeing were not being adequately addressed. Mr Sheridan observed that UF had stated to him that he did not believe he was overweight and that he needed to put on more weight. When questioned about this statement Mr Sheridan reported that UF had been unable to articulate his reasoning.
According to Mr Sheridan, UF would only address dietary concerns if it meant extracting a concession from his father and that UF had stated on several occasions that “he would be better off dead if his father does not agree to his demands”. Mr Sheridan stated that it appeared to him that UF lacked sufficient insight to fully comprehend the consequences of his health behaviours and the contribution of those behaviours to increased morbidity and increased risk of death.
The Board also considered a report of Dr Josephine Topp dated 8 August 2016. Dr Topp, a Child and Adolescence Psychiatrist, was of the view that UF suffered from high functioning autism spectrum disorder. This manifested in ritualised patterns of self care, obsessional and compulsive tendencies and behaviours, poor communication skills and significant social difficulties. In addition he was very inflexible and had poor insight. As a result he had poor daily living skills and no capacity to live independently.
At the time of writing the report Dr Topp had been treating UF with Sertraline to reduce anxiety and obsessional thinking but that the treatments had had limited success. Dr Topp considered that if UF received a supportive environment to change his behaviours his level of functioning could improve. Dr Topp supported additional financial support for the provision of supports, presumably via NDIS.
Following the suicide attempt, UF had been referred to a Consultant Psychiatrist, Dr Peter Wurth. Dr Wurth’s report of 8 December 2017 was considered by the Board. This report was more detailed than that of Dr Topp, containing a comprehensive history of UF’ schooling, family background and weight gain from 80kg to 135kg over three years.
According to Dr Wurth, UF completely denied that he had a weight problem and he was dismissive of medical opinions. History taken included reference to the suicide attempt and that it had been a condition of release from hospital that UF see a psychiatrist. Although he started seeing Dr Wilson weekly he then refused to continue seeing him. Dr Wurth noted that UF had been taking sertraline (Zoloft™) 150mg for the last few years which had been introduced for severe compulsive behaviours. It was reported by Dr Wurth that use of Zoloft was said to be very effective for obsessive compulsive behaviour, but this seems to be contrary to the views of Dr Topp referred to above. This contradiction demonstrated the complexity of UF’s presentation and the nature of decisions required about his person.
Dr Wurth made observations about UF’ presentation, manner of speech and evasiveness. He noted UF denied any problem with his weight. Based on history given about UF’ attitude towards carers and his suspicion of them, Dr Wurth thought that UF was paranoid although he could not establish any evidence of hallucinations. Dr Wurth considered that UF’ belief that he did not have a weight problem was in itself delusional and his view was that UF had probably developed schizophrenia. He suggested use of aripiprazole, (Abilify™), an anti-psychotic medication.
There was no explanation before the Board about why UF had refused to continue to see Dr Wilson nor any information in respect of what diagnosis Dr Wilson may have made during the period he treated UF following the suicide attempt.
Ms Love’s report dated 23 May 2017 was also considered and she made oral submissions at the hearing. During the period of the Emergency Guardianship order, Ms Love had made decisions on UF’ behalf in relation to service agreements with NDIS and appointment of a new co-ordinator of supports, which was considered to be a significant protective factor. The reference to the co-ordinator of supports was a reference to Mr Sheridan, but evidence before the Board indicated tht his involvement had since been rejected by UF.
Ms Love’s report conveyed that UF was likely to be opposed to appointment of a guardian. However, Ms Love had been in contact with Dr Topp and it was Dr Topp’s belief that UF would require longterm support, that there were ongoing concerns about diet, medication compliance, obesity and a high risk of severe health problems without intervention.
In her oral submissions, Ms Love appeared to endorse appointment of a Guardian, particularly because UF had refused support from Dr Wilson, Mr Sheridan and probably others since the Emergency order had lapsed, meaning the protective factors were no longer present hence endangering UF’ wellbeing.

Evaluation of evidence

The evidence summarised above demonstrated that it was likely UF suffered from disability affecting insight, reasoning and planning and hence reasonable decision making, either caused by autism spectrum disorder and obsessive compulsive disorder or alternatively schizophrenia.
The materials before the Board did not permit a finding about the particular diagnosis of medical or psychiatric condition UF suffered, in view of the competing opinions of Dr Wurth or Dr Topp. Dr Wurth offered a plausible explanation why a diagnosis of schizophrenia may be more probable, but he had only had the opportunity of assessing UF on the one occasion. Despite the lack of clarity about precise diagnosis, there was ample evidence that he suffered disability within the meaning of that term in section 3 of the Act, namely “means any restriction or lack (resulting from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function) of ability to perform an activity in a normal manner”.
The evidence of suicide attempt and threats of future ones if he did not have his father meet his demands, also demonstrated an inability to make reasonable judgments in respect of matters concerning his person and circumstances.
The Board unanimously considered there to be an abundance of evidence from three medical experts, EF, Mr Sheridan and Ms Love that UF refused needed medical and psychiatric treatment and support from NDIS. This satisfied us that there was a need for a guardian, there being no less restrictive option, despite what wishes UF may have, which were unlikely to be based on normal and reasonable decision making.
The evidence collectively demonstrated that there was a serious risk to UF’ health particularly because of his obesity, history of self harm and threats of future suicide attempts in the context of having again refused services and support. These factors demonstrated that without a formal guardianship order, UF would continue to refuse to receive support which the medical professionals deemed to be necessary.
The Board turned its mind to whether a limited guardianship order could be made. The conflicting diagnoses of UF’medical and/or psychiatric condition(s), warranted a full order, at least for an initial period of time. This being required due to the complexity of UF’s presentation, history and fairly recent suicide attempt. These necessitated comprehensive and continuing psychiatric assessment and treatment. This conceivably would involve outpatient or inpatient admission to an assessment facility under opposition and refusal to co-operate on UF’ part. Consequently decisions about where UF may reside, medical treatment, provision of support services, NDIS planning, who may visit UF (noting the dysfunctional nature of his relationship with his parents), diet and potentially other matters within the ambit of guardianship were all likely to arise initially.
Effectively most powers of a guardian were necessary at least initially until thorough and accurate assessment of UF’ conditions could be made and for that reason an order was made for a period of six months only. The Board indicated during the hearing that the guardian would be expected to ensure that appropriate psychiatric assessment was undertaken to inform the Board in relation to the necessity of continuing the guardianship order in the future and/or limiting the terms of it before the order was permitted to lapse, extended or reviewed.
The Board determined that in all the circumstances the Public Guardian should be appointed as there was no other person proposed as suitable and there had been a degree of improvement in circumstances during the Emergency order period.

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 their 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 be those conferred by Division 3 of Part 4 of the Guardianship and Administration Act 1995.
That the order remains in effect to 18 June 2018.

Sandra Taglieri
CHAIR

UF – Application for Guardianship

[2018] TASGAB 3

18 June 2018