Applying to VCAT for the appointment of a guardian of last resort on behalf of an older person in hospital is a serious decision. In line with the Charter of Human Rights and Responsibilities Act 2006 all public authorities, including public hospitals, need to be aware that the appointment of a guardian (or an administrator) is effectively a limitation of a person’s human rights. It is essential to thoroughly explore the person's values, preferences and motivations, and to identify the unique strengths and risks of the person and their situation. This will help the older person, their family and carers, and the treating team to identify and work towards trialling least restrictive alternatives.
A ‘least restrictive model of care’ applies an appropriate model of care that enhances an older person’s autonomy and respects their rights, individual worth, dignity and privacy. Any limitations on the person must be the minimum necessary, and must allow them to participate as much as possible in all decisions that affect them. Weighing up decisions regarding responsibilities and duty of care within this model can be challenging for professionals and families. Keeping the rights of the older person at the centre can help everyone involved in the process of care planning.
Maximise and encourage participation
Being in hospital can be an alienating and at times frightening experience for an older person, and their family and carers. They are removed from their familiar environment, routines and usual supports. People are at their most vulnerable, and it can be helpful to empathise with their situation so that you may build rapport and develop a care plan in partnership.
It is essential that you engage the older person and their family and carers, and ensure they have multiple opportunities to express their wishes and be involved in developing their care plan for discharge.
Establish the person’s goals and develop steps and timelines to achieve them. Revisit the goals with the person, their family and carers, and the treating team and readjust as necessary during the person’s admission. As a team ensure that you:
- consider the cultural and linguistic background of the older person and their family and use formal interpreters as appropriate
- explain options in plain language and be mindful of using health and legal jargon
- organise a family meeting and consider which health professionals need to be present at the meeting
- locate a private meeting room to hold the meeting in, to reduce distractions and promote the comfort of the older person and their family
- assist the older person and the family to prepare for the meeting
- explain the purpose and who will be present, invite them to bring an advocate/support person and explain the process
- provide the older person with ample opportunity to be engaged in the discussion - remembering that discussions about care needs can be confronting, especially in front of multiple people
- do not assume that the older person or their family understand health and legal language or the complexity of the process
- check that the older person and their family and carers have understood what you have told them
- clarify the patient's condition, what you expect the impact of the diagnosis on their function to be and what this might mean in terms of care needs once they leave the hospital.
Find out how the older person has usually made lifestyle decisions
Check if the older person has made formal arrangements and appointed a legal substitute decision maker. Ask to sight and request copies of any relevant paperwork to help clarify the nature of these arrangements.
Find out as much as you can about the older person’s values and wishes. Seek consent to speak with people close to them, including other health and aged care professionals who may have been involved with the older person.
Many people rely on the informal support of a family member, a friend or carer to help make important decisions. In these cases, it remains imperative that you encourage the older person to consider their options and give them opportunities to express their wishes. If the older person would like you to involve a person to support them to make a decision, ensure you remain alert to the possibility of ‘undue influence’. Also check where possible that the informal support person agrees to the arrangement.
Demonstrate empathy and aim to preserve the older person’s significant relationships
Applications for guardianship are often made in the context of conflict between the older person, their family and the treating team. This conflict is frequently about whether an older person requires residential care as opposed to returning to their usual home environment. It is important to note that disagreement can also occur within the treating team about preferred discharge options.1 To avoid an application and work towards developing least restrictive options:
- Find out what matters to the older person. Actively listen to their concerns and empathise with their situation. The impending loss of independence in lifestyle choices can be very overwhelming and trigger anxiety and anticipatory grief and loss for them and their family.
- Be mindful of preserving the relationship between the older person and the family member, especially if there is disagreement between the older person’s family member or carer and the treating team.
- Be mindful of carer and family stress. An episode in hospital can be very difficult for a spouse, son, daughter or sibling. It can spark a significant shift in family dynamics and be accompanied by grief and loss.
- Give people time to adjust to the team’s recommendation and provide them with the information on the options in a transparent way.
- Acknowledge and mediate family conflict where possible.2 Consider engaging formal conflict resolution strategies to explore least restrictive options. The Dispute Settlement Centre of Victoria (DSCV) is a free dispute resolution service that can provide a professionally mediated family meeting to help resolve conflict and reach an agreed decision. This may not be an appropriate avenue to pursue if you suspect the older person is experiencing elder abuse.
Work as a team to minimise functional decline
Be clear about the older person’s medical, functional, social and emotional needs and aim to minimise the risk of the older person experiencing functional decline in hospital.
Treat the person’s presenting issues and complete a comprehensive geriatric assessment to develop a care plan that can be continuously monitored and adjusted.
All staff play a key role in carefully considering least restrictive alternatives than making an application to VCAT for guardianship and ensuring that, where possible, these have been trialled and that the reasons for your intervention or lack of intervention have been documented in the patient record.
Work with the clinical experts in your health service to maximise the person’s access to regular:
- hydration and nutrition - as this plays a large role in maintaining and maximising function
- medication review - to simplify administration and frequency
- mobility and sitting out of bed - to optimise independence
- toileting - incontinence can be a major trigger for entry into residential care and there are many ways to avoid and treat issues
- pain management - unmanaged pain can limit a person's participation in their self-care
- monitoring for depression - most people with mild depression will respond to simple interventions such as listening, explaining and reassuring
- monitoring for acute changes to cognition - delirium can impair decision making ability and in many cases can be prevented and managed.
Focus on the older person’s strengths and work with your team to develop a care plan that maximises the person’s ability to exercise their values and preferences.
A thorough psychosocial assessment should be completed by a social worker in order to determine the nature of the presenting issues and to consider any interventions that have been implemented in the past to mitigate risks. A social worker can assist the team to understand the role of guardians and the process of making an application to VCAT for a guardian, and what happens when the Public Advocate is appointed as the guardian of last resort.
Trial least restrictive alternatives
Be mindful of the concept of ‘dignity of risk’ when developing a care plan in partnership with the older person and their family and carers. Enable the older person to exercise their human right to make decisions that may entail an element of risk. You may not agree with the decisions the older person is making - and traditionally health services may have wished to avoid risks at all cost. ‘Dignity of risk’ prompts you to consider how you can support someone to do what they want to do safely by exploring:
- What decision(s) need to be made?
- What are the specific risks?
- Can these risks be minimised?
- Can the decision be made in a more informal way than making an application for a guardian?
Carrying out our duty of care to a patient is not compromised by incorporating ‘dignity of risk’ when exploring least restrictive options; in fact, it should be considered part of our duty of care.
Considerations when considering least restrictive options
- Exploring what the older person's values are. This will help you to determine what sort of risks the older person would accept if he or she had capacity to make their own decisions.
- Involving community services that have been providing services to the older person. There may be additional or alternative services available to address the older person's needs after discharge.
- Aarrange an occupational therapist to assess the older person’s function and to complete a home visit.
- Explore the availability of other programs that can provide additional support on discharge, for example the Aged Care Assessment Service (ACAS), the Transition Care Program (TCP) and Health Independence Program (HIP).
- Training willing family and carers to help to the older person with tasks of daily living and trial a period where staff are ‘hands off’.
- Considering a trial discharge with a support package in place. This could be for a day, overnight or for a weekend.
- Consider whether the Protocol between the Aged Care Assessment Service and the Office of the Public Advocate 2011 could be used as a least restrictive alternative to applying for a guardian.
- This protocol stipulates that it is not always necessary to make an application for a guardian to consent to apply for access to residential care or other Commonwealth funded aged care services such as Home Care Packages or the Transition Care Program.
- If the person cannot consent, and there is no enduring power of attorney, next of kin or family member, then the older person’s GP, solicitor or a health professional who does not have a conflict of interest may sign on their behalf. As a last resort the ACAS manager can sign, but they must not have been directly involved in the person’s assessment for eligibility of services.
- Administrators should not sign the application for approval to access Commonwealth-funded aged care services.3
- This protocol should generally only be used when there is no conflict between the older person and the treating team, when the person lacks capacity and when there is no-one else able to sign.
Work with your team, and speak to senior managers and your ACAS to work through issues as they arise.
Use the Office of the Public Advocate’s Advice Service to troubleshoot options and document their recommendations.
National Ageing Research Institute, Health Services Guardianship Liaison Officer Pilot Evaluation, 2015, Melbourne: National Ageing Research Institute.
- National Ageing Research Institute, Health Services Guardianship Liaison Officer Pilot Evaluation, 2015, Melbourne: National Ageing Research Institute.
- State of Victoria, Department of Health, Protocol between the Aged Care Assessment Service and the Office of the Public Advocate, 2011, Melbourne: State of Victoria.