Barker v Guardianship and Administration Board - [2019] TASSC 8

[2019] TASSC 8

COURT: SUPREME COURT OF TASMANIA

CITATION: Barker v Guardianship and Administration Board [2019] TASSC 8

PARTIES  BARKER, Kim (in her capacity as The Public Guardian)
  v
  GUARDIANSHIP AND ADMINISTRATION BOARD

FILE NO:  199/2019
DELIVERED ON:  25 February 2019
DELIVERED AT:  Hobart
HEARING DATE:  7 February 2019
JUDGMENT OF:  Geason J

CATCHWORDS:

Statutes – Acts of Parliament – Statutory powers and duties – Construction – Conferral and extent of power – Guardianship and Administration Board – Emergency Guardianship Order – Grounds for making Emergency Guardianship Order – Power to appoint guardian – Hearing to quash decision of board.

Aust Dig Statutes [1164]

Administrative Law - Administrative tribunals – Statutory Appeals from Administrative Authorities to Courts – Guardianship and Administration Board.

Aust Dig Administrative Law [1147]

REPRESENTATION:

Counsel:
             Appellant:  J Rudolf
             Respondent:  No appearance
             Attorney General:   T Cox
Solicitors:
             Appellant:  Solicitor General
             Respondent:  No appearance
             Attorney General:  Attorney General

Judgment Number: [2019] TASSC 8
Number of paragraphs: 29

Serial No 8/2019
File No 199/2019

KIM BARKER in her capacity as THE PUBLIC GUARDIAN
v GUARDIANSHIP AND ADMINISTRATION BOARD

REASONS FOR JUDGMENT GEASON J

2019

The Public Guardian appeals against an order of the Guardianship and Administration Board (the Board) appointing the Public Guardian as guardian of a represented person[1], referred to in this judgment as PH. The order was made under the Guardianship and Administration Act 1995 (the Act), upon an application made pursuant to s 65 of the Act. That section empowers the Board to make an emergency order if it appears that it is proper to do so by reason of urgency. At the time the order was applied for PH was not a represented person.
[1] A represented person is defined in the Act as a person in respect of whom a guardianship order, an administration order, or both, are in force: s 4.
The grounds upon which the appeal is brought are these:
"Ground 1: The Board erred in law in determining that [the represented person] needed a guardian because her admission to a secure unit at the Roy Fagan Centre required the consent of a guardian, which, as a matter of law, it did not, because her admission was for medical treatment, and hence her 'person responsible' (namely her spouse) was able consent to the admission.
Ground 2: The Board erred in law in making an order pursuant to the determination ('the Order') in terms that were not authorised by the Guardianship and Administration Act 1995, in that order 2.(ii) of the Order purported to authorise the Public Guardian to provide consent to any reasonable measures required to convey [the represented person] to, and cause her to remain at 'the place of residence', which was not an order that was authorised by the Guardianship and Administration Act 1995 (in particular, it was not authorised by s 26 or s 28).
Ground 3: The Board erred in law in determining that it was proper, by reason of urgency, to make the determination, when no tribunal, properly instructed as to the law, could reasonably make same, there being no circumstances that could reasonably be considered to amount to a reason of urgency."
The appellant seeks an order quashing the determination of the Board and dismissing the application in respect of which it was made. For the reasons which follow, I make that order.
The Board did not participate in the hearing. The appellant was represented by the Solicitor General. The Attorney-General intervened. I acknowledge the assistance I have received from counsel.
The functions of the Public Guardian appear at s 15 of the Act and include acting as a guardian when appointed by the Board (s 15(1)(h)); such appointment is made on application under s 19 of the Act. An order can be made under s 20 of the Act. An emergency order may be made under s 65. Such order is anchored in the provisions of s 20, which confers jurisdiction, and the elements appearing at s 20(1)(a)-(c) are applicable. Such order is subject to a lower threshold which requires only that there "may be grounds for making a guardianship order ...". This lower threshold is permitted in circumstances of urgency, a matter about which the Board must be satisfied before exercising such power.
Section 20(1) says:
"20 Guardianship order
(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."
Section 65 says:
"65 Emergency orders
(1) Where the Board considers it proper to do so by reason of urgency, the Board may in respect of a represented person make any order or give any direction considered appropriate in the circumstances.
(2) Where the Board considers it proper to do so, by reason of urgency, the Board may, in respect of a person who is not a represented person but in respect of whom the Board considers that there may be grounds for making a guardianship order or an administration order make an order appointing –
(a) the Public Guardian as his or her guardian; or
(b) The Public Trustee as administrator of his or her estate –
and in either case the Board may make any order or give any direction considered appropriate in the circumstances.
(3) The Board may make an order under this section of its own motion or on request by any person whom the Board considers to have a proper interest in the matter.
(4) In the exercise of its powers under this section –
(a) the Board is not required to give notice to any person or to hold a hearing before making an order but the Board must make such inquiries or investigations as the Board may think appropriate; and
(b) the Board may act on a request made, or information received, by telephone or any other means that the Board considers appropriate in the circumstances; and
(c) the Board may make an administration order in respect of the estate of a person who is the donor of an enduring power of attorney in force under Part 4 of the Powers of Attorney Act 2000 , if he or she is of or over the age of 18 years.
(4A) The powers and functions of the Board under this section may be exercised and performed by one or 3 members of the Board as may be determined in each case by the President."
There is an emphasis in the Act on minimising impacts upon a person's freedom. Section 6 of the Act articulates principles to be observed in the performance of functions or powers under the Act. They are:
"6 Principles to be observed
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."
Section 20(2) requires that in determining whether or not a person is in need of a guardian, the Board is to consider whether the needs of the proposed represented person can be met by other means less restrictive of a person's freedom; s 20(5) requires an order to be that which is least restrictive of a person's freedom. These principles guide the application of the Act. The interpretation of the Act must of course be undertaken in accordance with established principles: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69]. The task begins and ends with an examination of the text of the legislation: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55, 250 CLR 503 [39].
The Act recognises a category of persons having a special relationship to a person requiring care. Such person is known as a "person responsible", s 4. A "person responsible" has legal authority to permit certain actions in respect of another, and actions within the ambit of such authority obviate the need for a legally appointed guardian. Self-evidently, actions outside the ambit of such authority will require a guardian to be appointed. One's spouse is a "person responsible" under the Act. PH's spouse was her person responsible.

The facts

At the time the application was made, PH was receiving medical treatment at the Royal Hobart Hospital (RHH). The challenged order was sought so that she could receive medical treatment at the Roy Fagan Centre (RFC). (I will refer to the treatment specified in the application as "the medical treatment"). The RFC is a secure mental health unit under the Mental Health Act 2013, and although some patients attend voluntarily and can leave at will, that was not to be the arrangement here. It is agreed between the appellant and the intervener, and I find, that the purpose of the represented person's proposed accommodation at the RFC was for the medical treatment referred to in the application for the order, and was to be within a secure unit. It is not suggested that the treatment could be provided other than upon such an arrangement.
The assumption underpinning the application was that the consent to the medical treatment did not authorise PH's detention at the RFC for the purpose of her receiving that treatment. It is the issue in this appeal.
The purpose of the medical treatment was described in the application as the provision of "... slow stream rehab, delirium management, ongoing cognitive assessment, and discharge planning". It was considered by her doctor that such admission was a more suitable course for PH than her returning home or going to a residential aged care unit. The application recorded that PH preferred her husband to be appointed her guardian, but was agreeable to the appointment of the Public Guardian if it would facilitate her going to the RFC. It is recorded that she expressed concern that a guardian could detain her indefinitely against her will, a comment that suggests that she has some insight into the terms of the proposed accommodation. It was noted that her family was agreeable to her being accommodated there, and that they understood the need for a guardian to be appointed to facilitate her transfer, and to consent to her accommodation there. That understanding was no doubt the product of the advice they had received from those seeking the order. Nothing turns on it.

The issue on the appeal

PH's spouse had legal authority as a "person responsible", to consent to the medical treatment. On the case presented to the Board, that consent did not (and could not) extend to authorise PH's detention for that purpose. Accordingly it was necessary to appoint a guardian, there being "no source of lawful authority to detain her". In challenging the order the Public Guardian contends that consent to the medical treatment, necessarily encompasses the accommodation required for its delivery. It is incidental to the treatment, and a guardian was not required.
The Attorney General disagrees, submitting:
"… As far as her treatment was concerned [PH's] spouse could have given consent for such treatment as a responsible person pursuant to s 4 of the Act. However, her spouse's powers as a responsible person were limited and did not extend to authorising her lawful detention.
4.        The formal application disclosed that:
a.        'She does not have capacity to make accommodation decisions';
b.'the proposed represented person … does not have the ability to consent to his (sic) detainment and there is no source of lawful authority to detain her';
c.'We seek a Guardian to consent to the accommodation and to consent to convey to accommodation for the proposed represented person';
d.'[PH] was concerned that a guardian could detain her indefinitely against her will'.
5.Despite some references in the Application to [PH] being agreeable to her transfer to RFC, and understanding that it was a ward in which she would be detained, the most probable inferences to be drawn from the application (and having regard to the nature of RFC as a secure institution) were:
a.that [PH] would be detained in the sense that her liberty would be restrained by her 'accommodation' at RFC, being a secure facility;
b.        that, at some point, she may be restrained at RFC against her will;
c.that she did not have legal capacity to consent to her being accommodated there, or, put another way, she was unable to make reasonable judgements in respect of a matter concerning her person or circumstances; and a. if she made unreasonable judgments about her restraint at RFC, there would be no lawful justification for her to be accommodated in a place where her liberty would be restrained, potentially, against her will.
6.It is accepted that ordinarily when a patient is admitted to hospital the patient is not living or accommodated at the hospital. The mere presence of a patient at a hospital in those circumstances is incidental to the treatment and care provided. A patient, in those circumstances, whether having or lacking legal capacity, may discharge him or herself at will, even contrary to medical advice.
7.However, in this case, the fact that RFC was a secure facility and the application contemplated PH's 'detainment', it was open to the Respondent to conclude that if she was transferred to RFC there was risk at large that at some point she may be unlawfully detained or, put simply, falsely imprisoned." [Emphasis added.]
Before I deal with the issue, I consider the intervener's submissions at pars 5b and 7, assert possibilities: that "at some point" something may occur. Because of the uncertain nature of each of those matters, neither provides a basis for an order. The Act is concerned with the circumstances of a person. Those circumstances can be only those which prevail at the time the order is sought. Until a possibility becomes fact, it is not a relevant matter; at the point at which it becomes fact a foundation for an application will exist. I do not consider that the Act authorises the making of orders against mere possibilities. Further, such approach is offensive to the principle which requires the lightest touch: s 6 and s 20 (see above).
There is nothing in the Act which expressly deals with the question of accommodation of a person like PH, when medical treatment is consented to by a person responsible. There is nothing which expressly requires a bifurcation of the issues of treatment and accommodation, requiring separate consent for each. That is entirely logical, because in my view the consent to medical treatment includes the accommodation necessary therefor. It is illogical to speak of a consent to medical treatment which does not encompass a permission to attend at a place for that treatment.
Is there a difference if the facts expose a choice about the venue for treatment? If the treatment could be given at a hospital that is not a secure facility, or one that is, does it affect that conclusion? Is it relevant in such a case that the patient's detention requires a choice outside the question of whether the medical treatment should be allowed to proceed? I do not think so. The mere fact that there is a choice between venues, does not disturb the nexus between the treatment and the accommodation: the accommodation, wherever it is, is accommodation for medical treatment. It is an arrangement necessary for and linked to the treatment, and thus within the reach of the consent to that treatment. No issue of false imprisonment arises.
The situation can be contrasted with accommodation connected to the organisation of a person's day to day living arrangements; his or her place of residence. Accommodation for medical treatment is transitory, temporally associated with the giving and receiving of the treatment.
As such, s 20(1)(c) of the Act was not satisfied. Section 20 authorises the appointment of a guardian when each of the matters in s 20(1)(a)-(c) are extant. But that was not the case here because the scope of the consent obviated the need for a guardian, meaning s 20(1)(c) was not engaged. Accordingly, the Board had no power to make the order.
The situation was not any different because an emergency order was sought. In order to find that an emergency order "may" be necessary the Board must make an assessment on the case before it. It is not asked to predict factual scenarios which may emerge in the future. The test required to be applied is that it "may be necessary to make an appointment on the facts as they are". Section 65(2) anticipates the need for a guardian based on existing facts; it does not anticipate facts for the purpose of making an order. Thus the prospect that PH may resist her detention in the future could not provide a basis for an order now. If and when she resisted her detention, an order could be applied for.
It follows, in my view, that once the scope of the consent given by the person responsible is understood, an order relating to accommodation for treatment is neither necessary nor authorised by the Act.
I find that accommodation linked to treatment forms part of a single factual transaction for which the person responsible is authorised by the Act to give consent on behalf the person with whom that relationship exists, subject to the qualification that the treatment is not special medical treatment as defined. I uphold ground 1.
Ground 2 challenges the order made in par 2(ii) of the order and suggests that the order was not authorised by the Act. In view of the conclusion I have reached on ground 1 it is not necessary to decide this ground. I will make some observations.
The terms of the challenged order were as follows:
"(ii)providing consent to any reasonable measures required to convey the Represented Person to and cause them to remain at the place of residence as determined by the Guardian."
The Court was directed to the terms of ss 25, 26 and 28 of the Act. They are:
"25   Authority of full guardian
(1)A guardianship order appointing a full guardian confers on the full guardian in respect of the represented person all the powers and duties which the full guardian would have in Tasmania if he or she was a parent and the represented person his or her child.
(2)Without limiting subsection (1) , an order appointing a full guardian confers on the person named as full guardian the power –
(a) to decide where the represented person is to live, whether permanently or temporarily; and
(b) to decide with whom the represented person is to live; and
(c) to decide whether the represented person should or should not be permitted to work and if so –
(i) the nature or type of work; and
(ii) the person for whom the represented person is to work; and
(iii) any related matters; and
(d) to restrict visits to a represented person to such extent as may be necessary in his or her best interests and to prohibit visits by any person if the guardian reasonably believes that they would have an adverse effect on the represented person;
(e) except as provided in Part 6 , to 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)Where a decision is made, action taken, consent given or act done by a full guardian, the decision, action, consent or act has effect as if it had been made, taken, given or done by the represented person and the represented person had the legal capacity to do so.
(4)A full guardian may, on behalf of a represented person, sign documents and do all such things as are necessary to give effect to any power or duty vested in the guardian.
26   Authority of limited guardian
(1)A guardianship order appointing a limited guardian confers on the limited guardian such one or more of the powers and duties in respect of the represented person which are conferred on a full guardian under this Act as the Board may specify in the order.
(2)Where a decision is made, action taken, consent given or act done by a limited guardian, the decision, action, consent or act has effect as if it had been made, taken, given or done by the represented person and the represented person had the legal capacity to do so.
(3)A limited guardian may, on behalf of a represented person, sign documents and do all such things as are necessary to give effect to any power or duty vested in the guardian.
28   Power to enforce guardianship order
(1)Without limiting section 25 or 26 , if the Board makes a guardianship order appointing a full or limited guardian, the Board may specify in the order that the person named as full or limited guardian or some other specified person is empowered to take such measures or actions as are specified in the order to ensure that the represented person complies with any decision of the guardian in the exercise of the powers and duties conferred by the order.
(2)Where a guardian or other person specified in the order under subsection (1) takes any measure or action specified in the order in the reasonable belief that –
(a) the measure or action is in the best interests of the represented person; and
(b) it is necessary or desirable to take that measure or action in the circumstances –
the guardian or other person is not liable to any action for false imprisonment or assault or any other action, liability, claim or demand arising out of the taking of that measure or action."

The impugned order is plainly outside the range of orders permitted under s 25(2) and invalid. Furthermore, in purporting to authorise the taking of "any reasonable measures ..." for the purpose of conveying PH, it is expressed in general terms and not in terms of specific measures and actions. Since the effect of an order under s 28 is to authorise actions and confer immunity from liability for those actions, an order requires specificity so there is certainty about the measures or actions within its scope. This order lacks the requisite specificity and as such it does not comply with s 28 of the Act.
I do not need to determine ground 3. Consideration of urgency is a matter requiring careful evaluation, but in circumstances where the need for a guardian was not established the question did not arise.
I uphold the appeal. I quash the order (and any purported extension of it) made by the Guardianship and Administration Board on 16 January 2019 appointing the appellant, guardian of PH. I dismiss the application upon which that order was made.