Medical Evidence
43 I was impressed by the evidence of Dr Hugh Fairfull-Smith, who swore affidavits on 4 November 1998 and 4 November 1999 and gave oral evidence. He is a specialist geriatrician who has had 13 years' experience specifically related to assessment of people with varying degrees of dementia.
44 He saw the deceased in 1987 and again on 23 June 1993. He expressed the opinion in his report of 30 June 1993 that the deceased had a mild to moderate degree of dementia affecting her ability to make judgments based on details.
45 His evidence distinguishes between the forgetful phase of dementia and the confused phase to which it progresses. He says that the initial symptom of the form of dementia known as Alzheimer's disease is short term memory loss which gradually expands from simple things (for example, misplacement of an object) to more severe forgetfulness (for example, that a cousin has died; or to refer to the facts of this case, that friends have recently visited). It progresses to the confused state when the patient has difficulty in dressing, gets lost in her own house, and experiences day/night disorientation. Eventually the dementia proceeds to a third phase when the patient is completely demented and is in a vegetative state. The basis for Dr Fairfull-Smith's conclusion that the deceased had reached only the forgetful stage was his interview with the deceased and a test which he performed.
46 In his interview the deceased showed him what he described as 'excellent social knowledge'. He said she was aware of the things of most significance to her and was able to remember things that had some emotional context. In his observation she was able to function socially and determine how she would spend her day.
47 He observed some elements of forgetfulness such as her inability to recall the Prime Minister's name, and poor orientation to place, and to some extent time. However, he found her to have good problem solving skills and visuo-facial orientation.
48 The test which he applied was the mini-mental status examination of Blessed and Tomlinson. In 1987 she had scored 30 out of 34. By 1993 her score was 19 out of 34, principally because of deficit in short-term memory.
49 On the basis of his observations and that test, he concluded that she retained the ability to manage her affairs in a broad sense, she was able to communicate and make a stable choice, and could grasp the significance of information. However, she would have difficulty recalling all relevant information and would only be able to get the gist of things, though she would be able to use that to manipulate her position rationally to a logically consistent conclusion. He specifically disagreed with Dr Holmes' assessment that she had advanced senile dementia.
50 Doctor Fairfull-Smith agreed that there may be day-to-day fluctuations in the performance or ability of a person with senile dementia. Improvements could be brought about, he said, by some good event. Likewise, stress elements could make the patient appear worse. Then when the stress was taken away the patient would revert to a better state. He said that in the right surroundings and circumstances the deceased, in a position of comfort with people with whom she was familiar, not feeling threatened or rushed, would be capable of making a rational decision.
51 Counsel for the plaintiff drew my attention to some evidence of Dr Fairfull-Smith in cross-examination, in which he had admitted that while it was possible that she could make a rational decision on a given day such as 2 July 1993, he could not say with any certainty that she was in fact capable of making a rational decision on that day. It seems to me, however, that Dr Fairfull-Smith's evidence in cross-examination is entirely consistent with his affidavits and goes no further than the affidavits on this question. The condition of the sufferer of dementia depends on the circumstances which obtain on the particular occasion when an assessment is needed. Doctor Fairfull-Smith based his answer to the cross-examiner on the statement that he was not there on 2 July. Considering his evidence as a whole it appears to me he was reasonably confident that her disease had not progressed so far as to prevent her from ever making a rational decision and in the right circumstances she would be capable of doing so.
52 I was also impressed by Dr Fairfull-Smith's general manner. It appears to me that he would be able to put a patient at ease and create an environment in which an accurate assessment of her capabilities could be undertaken. The description of the interview in his report of 30 June 1993 indicates in my mind that he did so when he saw her on 23 June.
53 Doctor Fairfull-Smith's evidence is consistent with the evidence given by Dr Weber. Doctor Weber is a general practitioner who cannot be expected to have the level of expertise of senile dementia possessed by Dr Fairfull-Smith. Nevertheless, he did have the opportunity of examining the deceased on 18 June 1993 and perhaps more significantly, attending at Mr Sochacki's office on 2 July 1993 and witnessing the will. His somewhat impressionistic evidence was that on 2 July, observing the deceased, he was confident that she was capable of making her own decisions.
54 The medical evidence for the plaintiff was given by Dr Petroff and Dr Holmes. Dr Petroff's report was dated 11 October 1993, relating to his examination of the deceased on 23 September 1993. This examination arose out of orders made by Hodgson J in the Protective Division proceedings, on an application by the Legal Aid Commission. Hodgson J had taken the view that since there was clearly a dispute about the capability of the deceased to manage her affairs, the Court would be assisted by further assessment. Mr Tunbridge, the solicitor for the Legal Aid Commission, confirmed that Dr Petroff would be available and Dr Petroff was accordingly appointed. Dr Petroff is a psychiatrist whose expertise is in dealing with mental disorders including depression and schizophrenia.
55 Alzheimer's disease is a physical disease affecting the brain. Doctor Fairfull-Smith gave evidence, which I accept, that one would normally refer a patient with senile dementia to a geriatrician rather than to a psychiatrist. That is consistent with Dr Petroff's own evidence to the effect that he had not treated a patient whose sole illness was Alzheimer's disease without any other components of mental disorder. Nevertheless, though a patient with Alzheimer's disease would typically be treated by a doctor other than a psychiatrist, it appears on the evidence that a psychiatrist is an appropriate person to assess the effect of such a disease on the level of understanding of the patient. In that sense Dr Petroff as an expert whose opinion is to be carefully considered.
56 Dr Petroff found that the deceased was disoriented as to time, not knowing the year, the month or even the season. She did not know where she lived and mentioned Brunswick Heads, which was her previous place of abode. She was unable to recall Dr Petroff's name, despite being told what it was and wrongly identified him as the tax man or someone sorting out her will. She had profound impairment of recent memory and could recall virtually nothing of the conversation which had occurred previously in the consultation. He said she had a very pleasant, placid demeanour giving one the impression of a person in control, but in his opinion she was severely disoriented. He said it was fairly pointless discussing matters with her as it only tended to upset her. He noted her belief that the Protective Office would cause a man to live with her and to tell her what to do. He found that she had Alzheimer's disease with dementia of moderate severity and that she was certainly not able to manage her own affairs. In reaching this conclusion he was influenced by his observation that she could very easily be taken advantage of.
57 Some aspects of Dr Petroff's evidence have caused me disquiet. Observing him in the witness box, I noticed he was inclined to speak rather quickly and at times not clearly. The explanation which Dr Petroff gives in his report of the interview, reinforced by his oral evidence, implies that nothing about the interview would have put her at ease or relieved her stress or made her feel comfortable. It appears from his report that at least a significant part of the interview related to her financial affairs. He told her - he says he did so on four occasions - that he was there to 'assess' her fitness to manage her affairs, and he inspected her cheque butts. Her interpretation that the interview was with the 'tax man' may not therefore be surprising.
58 The interview with him was the result of orders by the Court which had been opposed by the deceased. In these circumstances, while she was undoubtedly disoriented during the interview, it seems to me that the disorientation may not have been as extreme as the 'delusion' to which the cases refer. The interview with Dr Petroff is an application of the prediction made by Dr Fairfull-Smith, that the reaction of the deceased would be affected by her surroundings and that she may well be disoriented when under stress. While I do not reject Dr Petroff's evidence I am inclined to discount his conclusion to the extent that it is inconsistent with the conclusion of Dr Fairfull-Smith.
59 Dr Holmes was the deceased's general practitioner from 1984 until May 1993. He gave evidence that she suffered from 'advanced senile dementia', recording that she was unable to remember the details of day-to-day activities and had lost her short term memory. I regard Dr Holmes' evidence as consistent with the opinion of Dr Fairfull-Smith, except in one respect. The difference is that Dr Fairfull-Smith, on the basis of his knowledge and experience, describes the condition as mild to moderate in the forgetful phase of dementia, whereas Dr Holmes, relying essentially on observation of forgetfulness, describes the condition as advanced. I prefer the evidence of Dr Fairfull-Smith.