BE (Review Guardianship) - [2012] TASGAB 22

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

BE – Review of Guardianship Order on the application of the Public Guardian and Application for Consent to Medical Treatment on the application of XXXX

Neutral citation: BE (Review Guardianship) [2012] TASGAB 22

REASONS FOR DECISION

Anita Smith (President)

Date of hearing 31 August 2012

Guardianship – consent to medical treatment – whether limited guardianship order or determination for consent to medical treatment is the least restrictive alternative – whether least restrictive alternative is theoretical or practical – best interests – role of person responsible – term of order made on review

Guardianship and Administration Act 1995 ss 6, 11(2), 20(2) and (4), 25(1), 26(1), 40, 41, 43, 44, 45, 67

Guardianship and Administration Regulations 2007 reg. 7

United Nations Convention on the Rights of Persons with Disabilities, Art. 12

Stuart v Kirkland-Veenstra [2009] HCA 15
Re M. & R and Guardianship and Administration Board (1988) 2 VAR 213
McDonald v Guardianship Board [1993] 1 VR 521
Public Trustee v Blackwood [1998] TASSC 130
Edwards v Edwards [2009] VSC 190
BND (Review of Administration) [2012] TASGAB 3

BE is a 59 year old man. He lives in shared accommodation that is supported by XXXX, a disability service provider. He has been the subject of continuous limited guardianship orders pursuant to Part 4 of the Guardianship and Administration Act 1995 since 2003. The latest guardianship order was due for review on 19 February 2012. In her final annual report to the Board under the terms of that order, the Public Guardian suggested that a determination by the Board to consent to medical treatment may be as effective and a less restrictive alternative to the continuation of the limited guardianship order.
When the order was reviewed by the Board on 16 February 2012, there was no application before the Board to give consent to medical treatment pursuant to section 44 of the Act, meaning the Board was not in a position to substitute one order for another. Therefore proceedings were adjourned to enable the making of an application. A limited guardianship order was made on an interim basis during the adjournment. The matter returned to the Board on 31 August 2012 with an application pursuant to section 44 and an application for review of the guardianship order pursuant to section 67 listed before the Board simultaneously on the understanding that the applications were alternatives.
BE did not attend the hearing as his medical practitioner indicated that his physical and mental conditions would prevent him from doing so. Attendees at the hearing included representatives from XXXX and the Deputy Public Guardian.

Circumstances of the Guardianship Order:

BE has a severe intellectual disability and has a longstanding diagnosis of autism. He was institutionalized from age three at Willow Court and has not been known to have any contact with any family members. As part of the State Government process of de-institutionalisation, he moved to a group home in 1994. He has minimal expressive language but understands some…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: BE (Review Guardianship) [2012] TASGAB 22
Case: [2012] TASGAB 22
Decision Date: 31 August 2012

CaseChat Overview and Summary

The case of BE (Review Guardianship) involved a 59-year-old man with severe intellectual disability and autism, who had been under continuous limited guardianship orders since 2003. The Guardianship and Administration Board (the Board) reviewed the guardianship order and considered an application for consent to medical treatment, both applications being heard simultaneously. The Board had to decide whether a guardianship order or a consent to medical treatment order was the least restrictive alternative, in line with the Guardianship and Administration Act 1995.

The Board considered the theoretical and practical implications of autonomy and best interests in deciding the least restrictive alternative. While theoretically, a guardianship order limited to health care may be more restrictive, the Board noted that in practice, a guardianship order could provide more flexibility in treatment decisions and independent protection for the represented person. The Board also considered the potential delays in adjustments to the Board’s consent which could have adverse effects on the represented person's autonomy and participation in the community.

Based on the evidence presented, the Board concluded that the benefits of the ongoing and flexible relationship with a limited guardian would more likely serve the represented person's best interests than a determination for consent to specific treatments by the Board. The appointment of a guardian limited to health care powers would establish the Public Guardian as the represented person's person responsible, providing an independent level of protection for the represented person.

The Board ordered that the Public Guardian continue as the represented person's guardian, with powers and duties limited to 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. The order will be reviewed prior to the represented person turning 65 years old.

Orders