XE (Guardianship)
[2013] TASGAB 2
•25 February 2013
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
XE on the application of Mental Health Services
XE (Guardianship) [2013] TASGAB 2
REASONS FOR DECISION
Elizabeth Dalgleish (Chair)
Date of Hearing: 31 January 2013
Guardianship – disability – incapacity – need for a guardian – represented person refusing treatment - least restrictive alternatives – best interests of the represented person - request for adjournment declined
Guardianship and Administration Act 1995 s 3, 6, 19, 20
This was an application for the appointment of a guardian for XE. XE had been evicted from his accommodation in Devonport due to “interpersonal conflict and threats driven by his poor processing, concentration and paranoia” and at the time of the hearing, was residing at the Roy Fagan Centre under an emergency guardianship order. XE had been refusing his medication at the Roy Fagan Centre and a guardian was sought to consent to his ongoing accommodation at the Roy Fagan Centre and/or to determine an alternative accommodation option and to provide consent to health care.
History of Orders
XE has been subject to an Administration Order since 2009. This was reviewed by the Board on 22 March 2012 and that Order was extended for a further five years. The Public Guardian was appointed as guardian for XE in 2009, however this was reviewed at the request of the Public Guardian on 14 April 2011 and the order was revoked as XE was in settled accommodation and there were no accommodation decisions to be made by the guardian. An emergency order for the appointment of a guardian was received by the Board on 17 December 2012 and an order was made for a guardian to consent to accommodation under the Board’s emergency provisions. This order was extended on 15 January 2013.
The current application for Guardianship was made by UV on behalf of Older Persons Mental Health Services seeking the appointment of the Public Guardian. The applicant stated that XE lacked sufficient capacity to make decisions about where he would live and whether to take medication which would help his paranoid thinking.
The Board conducted an investigation into the application and GAB Investigator, Brit Bullard, prepared a report for the Board. As part of this application, interested parties were contacted as was Advocacy Tasmania. Jim Patterson from Advocacy Tasmania was provided with a copy of the application on 23 January 2013. Advocacy Tasmania also contacted the Legal Aid Commission of Tasmania (LACT) and provided them with a copy of the application prior to 25 January 2013. The Board sent out hearing notices on 16 January 2013.
The hearing was convened at the Roy Fagan Centre and was attended by:
XE – Proposed Represented Person
UV - Applicant, Roy Fagan Centre
DC- Roy Fagan Centre
OI- registered nurse at Roy Fagan Centre
Sarah Campbell - LACT
Jim Patterson - Advocacy Tasmania
Fiona Whitton - The Public Trustee
James Nielson - The Public Trustee
Lisa Warner - The Public Guardian
Request for Adjournment:
Shortly after commencing the hearing, Ms Campbell sought an adjournment of the application, indicating that there would be no objection to the imposition of an interim order during an adjournment. She sought an adjournment because:
·LACT had received information from the Mersey Community Hospital at 2.17 p.m. the previous day and that they had not had the opportunity to peruse the documents and seek instructions,
·LACT had further medical information (which had not been supplied to the Board), and
·LACT would be seeking a further medical assessment of XE’s capacity to make decisions.
Ms Campbell also noted that it would be open to LACT to seek a review at a later stage should medical evidence be obtained which provided alternative evidence of capacity.
The Board was not satisfied that LACT had inadequate time to seek instructions from their client. The Board noted that XE also had a disability advocate, Jim Patterson, present to advocate for him at this hearing. In view of XE’s presentation and demeanour at the hearing, the issue of XE’s capacity did not appear to be seriously in question but a review at a later time might be warranted if his health improves. There is no fee or impediment to XE applying for a review after the commencement of the order.
The request for an adjournment was therefore denied.
Tests to be applied:
Before the Board might grant an application for the appointment of a guardian it must assess the elements set on in section 20 of the Guardianship and Administration Act 1995 (the Act):
“(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.”
When making that determination the Board must also balance three principles set out in section 6 of the Act:
“A function or power conferred, or duty imposed, by this Act is to be performed so that –
(a)the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; and
(b) the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and
(c)the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect.”
Is XE a person with a disability (section 20(1)(a))?
In determining the question of whether or not XE is a person with a disability, the Board relied on a Health Care Professional Report prepared by Dr Matthew Fasnacht, Psychiatrist dated 31 December 2012 together with the medical advice which was provided in the application for an Emergency Guardian by Dr Rita Kronstorfer, Psychiatrist dated 17 December 2012. Dr Fasnacht described XE’s disability as vascular dementia with mostly frontal lobe deficits especially paranoid psychosis, poor attention and processing. Dr Kronstorfer’s opinion was consistent with that report.
After weighing up the two recent medical opinions from the Psychiatrists which also included results from an ACE III (cognitive test 63/100) and after observing to XE’s behaviour at the hearing, the Board was satisfied that XE is a person with a disability within the meaning of the Act.
Is XE unable by reason of his disability to make reasonable judgements in respect of all or any matters relating to his person or circumstances? (Section 20 (1)(b))
In the two medical reports previously referred to, it has been stated that XE has been evicted from his accommodation due to interpersonal conflict and threats. This has been driven by his poor processing, concentration and paranoia. He has been refusing to take medication prescribed for him, namely Risperidone. At the hearing the Board was advised by Ms Campbell and by XE himself, that XE had a philosophical opposition to taking any medication containing opiates. XE stated that his religion forbids him from taking anything with opiates in it. The Board was advised by the applicant, that Risperidone, an anti-psychotic drug which has been prescribed for XE, does not contain any opiates. Despite this assurance XE stated that he will not take the Risperidone. XE stated to the Board that he had spent two years training as a chemist and that he would not accept “that anyone knew less (sic) than me about medication”.
When XE was asked where he would like to live he advised the Board that he was happy at the Roy Fagan Centre, particularly because it was $100 cheaper than the other places.
The evidence provided by XE regarding his refusal to take medication despite it not containing any opiates provided a very good example of XE’s lack of capacity to make reasonable decisions. Due to his refusal to take medication, XE is unable to be transferred to alternative accommodation.
Is XE in Need of a Guardian (section 20(1)(c))?
XE does not have anyone suitable to take on the role of ‘person responsible’ due to the fact that he is estranged from his family. In that respect there is no less restrictive alternative than a guardian for providing substitute consent if XE refuses treatment.
According to the applicant, XE cannot stay indefinitely at the Roy Fagan Centre. Currently there is a need for a guardian to consent to his accommodation in a secure unit at the Roy Fagan Centre however there will also be a future need for a guardian to make a decision about where is the most appropriate place for XE to be residing. At the hearing there were no alternative accommodation options presented to the Board.
In the hearing, XE demonstrated a clear lack of ability to make decisions about health care. His decisions surrounding health care did not display any insight into his condition and appeared to be motivated through unreasonable views. By not taking medication, in accordance with XE’s views, XE continues to display paranoia which limits his options to live in a less restrictive environment.
In terms of section 20(c) the Board considered whether there were any other less restrictive options for XE however there were no alternatives presented to the Board. Therefore, after weighing up XEs’s best interests and after taking into account XE’s wishes not to have a guardian, it was evident that that a guardianship order was in XE’s best interests. However the current needs for a guardian may be resolved within a short period of time. Therefore the Board limited the order to 18 months, rather than the three years available under the Act, to adhere to the least restrictive alternative.
On the basis of the application, written materials and the evidence given at the hearing, the Board concluded that XE is in need of a guardian, but that such appointment is capable of limitation in content and time as reflected in the orders below.
The Public Guardian was nominated as XE’s guardian. There was no other nomination.
Conclusion:
The Board was satisfied that the represented person
· Is a person with a disability
· Is unable by reason of the disability to make reasonable judgements in respect of his person and circumstances; and
· Is in need of a guardian:
THE BOARD ORDERS
1. That the Public Guardian be appointed as the represented person’s guardian.
2. That the powers are duties of the guardian are limited to:
(i) decisions concerning where the represented person is to live either permanently or temporarily
(ii) decisions concerning consent to any health care that is in the best interests of the represented person and to refuse or withdraw consent to any such treatment.
3. That the Order remains in effect until July 2014.
ELIZABETH DALGLEISH
MEMBER
Reasons delivered: 25 February 2013
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