BKW (Guardianship Directions)
[2010] TASGAB 22
•2 November 2010
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
BKW application for guardianship by THE ROYAL HOBART HOSPITAL
Neutral citation: BKW (Guardianship Directions) [2010] TASGAB 22
REASONS FOR DECISION
Anita Smith (President)
Elizabeth Love (Member)
William Downie (Member)
Guardianship – the Public Guardian – ability of the Board to impose standard directions to a guardian regarding the operation of the order – performance by the Public Guardian of her statutory duties – vulnerable represented person in need of advocacy and support
Guardianship and Administration Act 1995 Part 4, sections 6, 20, 67
BKW (Guardianship) [2002] TASGAB 3
KKQ (Guardianship) [2010] TASGAB 21
This is a decision about whether, in appointing a guardian, the Guardianship and Administration Board ought to impose the directions set out in a document prepared by the Board called Standard Directions to a Guardian (hereafter called the ‘Standard Directions’) to guide the actions of the Public Guardian during her term of appointment as a guardian for an adult with a disability.
After a hearing on 24 September 2010 the Board was satisfied that BKW (hereafter ‘the represented person’) has a disability, namely relapsing schizophrenia, possibly as a result of brain surgery performed upon her as a child, and epilepsy. This disability renders her incapable of making reasonable decisions in that she experiences delusions, she refuses to accept either diagnoses and has great difficulty in managing basic life decisions. The Board was satisfied that the represented person needs a guardian to make decisions about health care in particular to make complex medication decisions regarding the interaction of antipsychotic drugs and epilepsy drugs. The Public Guardian was the only nominee for appointment as a guardian and implied, by comments made by her delegate during the hearing, consent to appointment.
At the hearing the Board asked the Public Guardian’s delegate whether Standard Directions to a Guardian ought to apply to this appointment. The Board granted the Public Guardian’s delegate 21 days to provide written submissions on that point. The Board then issued an order as follows:
1.That the Public Guardian be appointed as the represented person’s guardian.
2.That the powers and duties of the guardian are 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.
3.That the guardian is to make a written submission to the Board within 21 days in relation to whether or not the Standard Directions to a Guardian should apply.
4.That the order remains in effect to 23 September 2013.
The Public Guardian’s submissions were supplied to the Board on 15 October 2010 and were identical to submissions received in the matter of KKQ (Guardianship Directions) [2010] TASGAB 21. This decision relates specifically to whether the Standard Directions will be imposed upon the Public Guardian in this case.
The Board refers to reasons set out in KKQ (Guardianship Directions) [2010] TASGAB 21 and relies upon those reasons for its decision that the Standard Directions to a Guardian as amended are lawful and appropriate directions for the Board to give a guardian.
Why does the Board consider that imposing Standard Directions is necessary in this case?
The represented person is 48 years of age and was first the subject of a 3 year guardianship order limited to health care decisions in 2002. A statement of reasons is available called BKW (Guardianship) [2002] TASGAB 3 relating to that decision. That order was renewed in 2005 with additional powers given to the guardian under section 28 of the Act. The order was reviewed on the represented person’s application on 20 October 2006 but the application was adjourned and later dismissed on 26 October 2007. The Board subsequently issued 6 month orders in June 2008 and January 2009. The orders then lapsed but the Board issued an emergency 28 day order on 19 April 2010 and an interim order on 17 May 2010 which concluded with the current appointment. On each appointment, the Public Guardian has been appointed as guardian.
In KKQ (Guardianship Directions) [2010] TASGAB 21 the Board stated that it had perceived shortcomings in the performance by the Public Guardian of its role as guardian when appointed by the Board. The proposed represented person’s history of guardianship, as recorded on the Board’s file, confirms aspects of the Board’s perception and the need for Standard Directions on a case-by-case basis. For instance[1]:
[1] The following list was provided to the Public Guardian on 25 October 2010 with an opportunity to comment upon its accuracy by 29 October 2010, but no response was received.
(a) In 2003 the Public Guardian’s annual report to the Board was 1 sentence long.
(b) In 2004 the Public Guardian’s annual report to the Board was 4 sentences long.
(c) In 2005 the Public Guardian’s annual report to the Board was 2 sentences long (insofar as it related to BKW) but presumably further information was provided to the Board in the review hearing.
(d) In 2006 the Public Guardian’s annual report to the Board, in total, read:
“This report need only be brief as nothing has changed with BKW as she continues to go off the railes (sic) every 8-10 weeks. the latest episode being at the beginning of May 06. inevitably I have to use the Police for (sic) a member of the Community Mental Health Team to gain access to her when she will not allow them into her home and on other occasions the Police have transported her to the LGH. Once medicated there are no problems.”
(e) The guardian’s response to the Board when an officer notified him that the represented person had made an application to review the order on 17 September 2006 was:
“I guess she is just following up on the fact that she was very peed off when the last order was made.”
(f) The guardian’s report to the Board for the review hearing in 2006 stated:
“I refer to your email of September 7, 2006 re BKW and advise that all has been quiet since the last refusal of medication early in May of this year. That particular episode was overcome with the help of the Launceston Police.”
(g) The review hearing was adjourned on 20 October 2006 to allow the guardian to obtain a medical report about the represented person’s epilepsy. The Board’s officers sent 9 reminders over 11 months before the required report was received. The delegate acknowledged his poor performance by email to the Board on 24 August 2007. The report was received on 19 September 2007. The Board confirmed the order on 26 October 2007. No annual report was received by the Board from the Public Guardian in 2007.
(h) An annual report in the format then approved by the Board was received on 27 May 2008. The guardian noted that he had not been called upon to make any decisions on the represented person’s behalf since May 2006 and thought it appropriate to let it lapse, a decision which caused concern to the Community Mental Health Services team who supported her.
(i) As a result of evidence from the Community Mental Health Services team, upon review the Board made a 6 month order appointing the Public Guardian as guardian limited to health care decisions on 6 June 2008.
(j) On 26 November 2008 the Public Guardian’s delegate advised that he did not intend to seek a review of the order but was, once again, content for it to lapse. The Community Mental Health Services team expressed concern about that course and made a fresh application shortly after the order expired. The Board made a new order on 9 January 2009 for six months.
(k) On 25 May 2009 the Public Guardian’s delegate provided a 2 sentence report again indicating that he would not be seeking an extension of the orders as the represented person was unmedicated and progressing well.
(l) An emergency 28 day guardianship order was issued on 19 April 2010 when the represented person was in great distress and in need of anti-psychotic treatment.
(m) The represented person has remained on a limited guardianship order since 2 July 2010.
From her history it appears that the represented person is a person who will only take antipsychotic medication when there is an order in place requiring her to do so. On each occasion when the order lapsed or medication was stopped, the represented person has, sooner or later, suffered a distressing relapse.
The historical annual reports by the Public Guardian provide insufficient detail for the Board to determine whether the objects of the Act are being met within those appointments. For instance the Board could not determine from the basis of these reports that the represented person’s wishes were sought, or whether the guardian sought the relevant information required to make a decision pursuant to section 43 from medical practitioners in consenting to treatment or agreeing to its cessation. That detail which is available is centred upon whether or not requests had been made of the guardian by the treating team for consent to medical treatment. It is an example of the need for the Board to specify its expectations of a guardian when appointing the Public Guardian and to monitor whether those expectations are met.
This is a matter where the Standard Directions as amended need to apply to ensure that the represented person’s experience of guardianship reflects the principles in sections 6 and 27 of the Act and that the Board’s role in receiving reports is effective. The Board believes that the standard of guardianship and the standard of reporting to the Board will improve in the current appointment with the imposition of the Standard Directions. Such improvements will manifest in the following ways:
(i)Directions 1 and 2 require that the Public Guardian establishes and maintains an appropriate relationship with the represented person during the currency of the order. The guardian’s activity on this file previously seemed to be motivated by requests by the treating team, rather than any contact with the represented person.
(ii)Direction 3 requires that the represented person’s brother is consulted in important decisions that the guardian might make (such as deciding not to seek renewal of the order). Her brother may be able to provide historical or current data about the represented person’s wishes and the efficacy of various approaches that have been attempted in the past.
(iii)Direction 4 requires that services such as Community Mental Health Services are consulted before the guardian makes fundamental decisions, and Direction 7.3(a) would ensure that service providers are consulted before the guardian decides that an order ought to lapse without a review hearing. Such consultation will promote consistency and certainty for the represented person.
(iv)Imposition of Direction 5 will ensure that the procedures in section 43 and Regulation 8 are adhered to before the guardian gives consent to medical treatment, ensuring that the represented person is consulted about each treatment decision.
(v)The incident where the Public Guardian did not comply with the Board’s request for a medical report for 11 months would be an issue that would arise for discussion in a periodic review of the file. Additionally, internal supervision during the currency of this file might have lead to an examination of the reasons why there were such divergent views between the guardian and Community Mental Health Services about the role of the order. Direction 6 is particularly appropriate to this appointment.
(vi)Imposition of Direction 7 will require a higher standard of reporting to the Board, meaning that the Board will be better informed about whether the principles in section 6 and the requirements of a guardian in section 27 have been complied with.
Accordingly the Board will now amend the order, pursuant to powers in section 31(4) of the Act to read as follows:
1.That the Public Guardian be appointed as the represented person’s guardian.
2.That the powers and duties of the guardian are 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.
3.That the Standard Directions to a Guardian issued 2 November 2010 shall apply with respect to this order.
4.That the order remains in effect to 23 September 2013.
Dated this 2nd November 2010
Anita Smith Elizabeth Love William Downie
PRESIDENT MEMBER MEMBER
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