BN (Advice and Direction)
[2014] TASGAB 16
•8 September 2014
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
BN – Rejection of Application for Review and Advice to a Guardian of Board’s Own Motion
BN (Advice and Direction) [2014] TASGAB 16
REASONS FOR DECISION
Anita Smith (President)
Date of decision: 8 September 2014
Consent to medical treatment – person responsible - the role of a limited guardian as a ‘person responsible’ – meaning of ‘named as a guardian,’ ‘in order of priority,’ ‘health care’ and ‘medical treatment’ - advice and direction to a guardian – application to review guardianship order rejected on grounds that it is lacking in substance, based on misinterpretation of the legislation
Guardianship and Administration Act 1994 s. 4, 11, 31, 20, 25, 26, 39, 42, 43, Part 6,
BN (Review Enduring Guardian and Guardianship) [2013] TASGAB 21
Public Guardian v Guardianship and Administration Board [2011] TASSC 31
Duffy v Super Centre Development Corporation Ltd [1967] 1 NSWR 382 at 383
Macedonian Orthodox Community Church (2008) 237 CLR 66
Re Centro Retail Australia Ltd [2012] VSC 240
On 20 September 2013, the Board appointed the Public Guardian as the guardian for BN with powers and duties limited to (i) decisions concerning where the represented person is to live either permanently or temporarily, and (ii) authorising leave from the place of residence.
This appointment resulted from an application to review an enduring guardianship and application for appointment of a guardian. BN had purportedly appointed QDT and MN as his enduring guardians pursuant to section 32 of the Guardianship and Administration Act 1995 (the Act). The instrument appointing an enduring guardian was found to be invalid and a guardian was appointed for reasons expressed in BN (Review Enduring Guardian and Guardianship) [2013] TASGAB 21.
The decision referred to above was the subject of an appeal to the Supreme Court which was dismissed on 5 September 2014.
On 31 July 2014 BN’s daughter, KN, applied for a review of the Board’s order on the grounds that ON, his wife, and the applicant are:
“…. currently responsible for health care decisions which we make in consultation with the staff at XXXX. We are constantly criticised and pressured by other family members about decisions made. This is causing a lot of stress and the situation has become untenable from our point of view. We both believe it would be in Dad’s best interests if the independent Public Guardian was to take over this role.”
On 4 August, the Board drafted a statement of reasons which rejected that application to review and offered advice and direction to the guardian. That draft statement of reasons was sent to the guardian and her submissions were sought in relation to whether the draft statement of reasons ought to be private advice and if not what process (amongst alternative processes proposed by the Board) she considered might be appropriate for receiving input from other parties.
By email dated 15 August 2014, the Public Guardian elected the following course of action proposed by the Board:
“[The] draft advice is circulated to all ‘interested parties’ listed for the hearing on 20 September 2013. Those persons will be invited to make submissions on the draft advice before a final advice is offered.”
The Public Guardian submitted that this course of action afforded:
“… all interested parties procedural fairness without the need to have the matter re-listed for hearing which given that the issue at hand is purely a matter of statutory interpretation is unlikely to serve any real purpose other than potentially causing more angst in a family that is already engulfed in conflict. I see no obvious prejudice to any party by adopting this approach … I think Course of Action 1 the most prudent option to adopt particularly where the parties are protective of their legal rights and have shown a willingness in the past to seek redress in the Supreme Court in circumstances where they perceive that those rights have been breached.”
The Board concurred with the Public Guardian’s submission. The following paragraphs 8 to 24 (inclusive) and paragraphs 1, 2 and 4 above (with minor corrections) were included in that draft statement of reasons circulated by email to parties on 19 August 2014. Parties were asked to respond by 27 August 2014. The Board received written responses from the Public Guardian, KN, ON and UX (KN’s husband). MN had changed email address, so did not receive the information until 4 September 2014. Accordingly, the Board extended time for her to respond and she helpfully provided a response later that same day. Late submissions were also accepted from BDT and QDT.
Rejection of application for review:
I reject the application pursuant to section 11(13) because it is lacking in substance, in that it is founded on a misinterpretation of the Act. I offer advice of Board’s own motion to the Public Guardian that she is the ‘person responsible’ for the purposes of section 4 and Part 6 of the Act. I also offer advice as to the status of former consents given under the long held misinterpretation of section 4 of the Act.
The nature of advice and direction to a guardian:
Section 31 of the Act provides:
“31. Advice or directions as to guardianship orders
(1) A guardian may apply for advice or direction by the Board on any matter relating to the scope of the guardianship order or the exercise of any power by the guardian under the guardianship order.(2) The Board may require notice of an application under subsection (1) to be given to any person that the Board directs and may exercise its powers under this section without a hearing.
(3) The Board may –
(a) approve or disapprove of any act proposed to be done by the guardian; and
(b) give such advice or direction as it considers appropriate; and
(c) vary the guardianship order or make any other order that it could have made on the original application.
(4) The Board of its own motion may direct, or offer advice to, a guardian in respect of any matter.
(5) A guardian who contravenes a direction given to him or her under this section is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units.”
Blow J. (as he then was) in Public Guardian v Guardianship and Administration Board [2011] TASSC 31 noted that statutory powers to give directions are generally conferred with a view to their being used only in unusual situations, involving real doubt or difficulty at paragraph [29] and [44]. In paragraph [44] he stated:
“A direction may be given only in relation to a matter relating to the scope of the guardianship order, or the exercise of a power by the guardian under the guardianship order, or a question as to the ongoing appropriateness of the guardianship order itself.”
In paragraph [30], he also noted that scope of the Board’s power to give directions is no different between subsection 31(1) and 31(4). Noting that this statement of reasons relates to the giving of advice (which does not carry the same potential for a penalty for breach as a direction and therefore is of a different character), the Board considers that the issues raised by JN call into question the exercise of a power by the guardian under the guardianship order and this is an unusual situation involving real doubt or difficulty. To paraphrase Street J. (as he then was) in Duffy v Super Centre Development Corporation Ltd [1967] 1 NSWR 382 at 383 (as approved by Blow J. in Public Guardian v Guardianship and Administration Board) there is a decision of real significance in BN’s affairs as to which there are real and substantial grounds for questioning the correctness of the authority of a ‘person responsible’ being exercised with respect to his medical treatment by someone other than his guardian.
In Macedonian Orthodox Community Church (2008) 237 CLR 66, the majority of the High Court made some general points about the role of a Court in giving advice to a trustee, including that there is no implied limitation on the power to give advice; that there are no implied limitations on discretionary factors;[at 90] that the procedure is summary in character;[at 90] and that the advice is private because its function is to give personal protection to the trustee and operates as an exception to the court’s ordinary function of deciding disputes between litigants.[at 91] [1]
[1] As summarised in Re Centro Retail Australia Ltd [2012] VSC 240 by Almond J.
There appears to be correlation between the nature of a Court giving advice to a trustee and this Board giving advice to a guardian. Those principles appear consistent with the words of the statute and the intention of the legislation. Accordingly, I will adopt those principles in proceeding with this advice and direction insofar as they are relevant. Because of the procedure adopted by the Board in this case, the advice will be circulated to all parties.
Determining the ‘person responsible’ for a represented person who is the subject of a limited guardianship order:
KN and ON have been under a common misapprehension that they act as ‘person responsible’ even after a limited guardian has been appointed for BN. That misapprehension is one that has traditionally been promoted by the Board and possibly the Public Guardian but, in my view, that interpretation requires correction.
Section 4 of the Act defines a person responsible for an adult as:
“4. Meaning of "person responsible"
(1) In this Act, person responsible for another person means –
…
(c) where the other person is of or over the age of 18 years, one of the following persons, in order of priority:
(i) his or her guardian;
(ii) his or her spouse;
(iii) the person having the care of the other person;
(iv) a close friend or relative of the other person.” (emphasis added)
Section 3 defines the term ‘guardian’ as:
“guardian means a person named as a guardian in a guardianship order or as an enduring guardian in an instrument of appointment as such” (emphasis added)
In section 4, the word “one” expressly places a limit on the number of persons who will have authority as the ‘person responsible’ for a person with a disability. If multiple persons who qualify for different roles under section 4(1)(c) could act as ‘person responsible’ in any given treatment[2] it would undermine certainty for medical and dental practitioners relying on the substitute consent and the person with a disability. Reading the word “one” together with the words “in order of priority” in that section establishes that the intention of the provision is to instil just one person or agency with authority to consent to medical treatment. This limits the potential for a practitioner to ‘shop around’ for a ‘person responsible’ who might give consent or refusal which suits the objectives of the medical practitioner. The effect of the establishment of the priority is that if the guardian consents to or refuses treatment, there is no facility for a practitioner to work down the list of potential ‘persons responsible’ to find one more biddable to a practitioners’ preferred outcome.[3]
[2] Note that this does not mean that the relevant ‘person responsible’ may not change over time between different treatments, for instance if a person who does not have a guardian marries or takes on a different unpaid carer.
[3] In cases where there is conflict between the practitioner’s view and the ‘person responsible,’ the Board can determine an application pursuant to section 44 GAA or appoint a guardian.
Neither section 4 nor section 3 limits the application of the term ‘guardian’ to a guardian appointed with the relevant powers to consent to medical treatment. The only qualification is that he or she is ‘named’ as a guardian in an order or in an instrument appointing an enduring guardian.
Additionally, section 25(2) refers to a guardian having powers:
“(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.” (emphasis added)
Part 6 applies to ‘medical treatment’ which is a narrower domain of decision making than ‘health care’. ‘Medical treatment’ is primarily defined in the Act as:
“(a) medical treatment (including any medical or surgical procedure, operation or examination and any prophylactic, palliative or rehabilitative care) normally carried out by, or under, the supervision of a medical practitioner”[4]
‘Health care,’ as it appears in section 25(2)(e), is not defined in the Act but appears to be an umbrella term that could encompass care provided by allied medical practitioners, for example, psychological counselling, physiotherapy and other forms of physical and mental rehabilitation not provided by medical or dental practitioners. Consent provided in Part 6 of the Act is expressly excluded from the operation of ‘health care’ in section 25(2)(e) of the Act. Therefore, it appears that the legislature intended the authority of a guardian to act as ‘person responsible’ to be an authority that sits above and beyond the powers bestowed on a guardian pursuant to Part 4 of the Act.
[4] There are exceptions to this definition and other matters that are included, such as dental treatment, which are not relevant to the current discussion. Also note that definition is now restricted by the operation of section 22 of the Mental Health (Transitional and Consequential Provisions) Act 2013 which precludes the application of Part 6 of the Act for consent to treatment of a mental illness.
The Board concludes that a person ‘named as a guardian’ will exercise the authority of a ‘person responsible’ whether or not he or she has been appointed with specific powers to make decisions about ‘health care’. In other words, a limited guardian will always impliedly bear the authority of a ‘person responsible’ for a person with a disability, even where he or she has not been expressly so appointed. Similarly, (where no guardian is appointed) a spouse assumes the authority of a ‘person responsible’ for a person with a disability even though there has been no formal appointment or acceptance of that role prior to the occasion requiring consent to medical treatment.
If the Board intends for one person (for example, a spouse) to retain decision making authority as a ‘person responsible’ [Person A] and another person (for example, the Public Guardian) [Person B] to make other specific decisions, such as where the represented person lives temporarily or permanently, then it would presumably be necessary to also appoint Person A as a limited guardian with sufficient powers to act as a ‘person responsible’ pursuant to section 20(6) otherwise Person B will automatically assume those powers and it is to Person B that a medical practitioner should turn for consent to or refusal of medical treatment.
Advice to the Guardian:
For reasons set out above, it is my view that the Public Guardian is advised to assume the functions of ‘person responsible’ for BN while he is a represented person, i.e. during the currency of the order.
Status of past consents given for medical treatment:
Although the Board is not the relevant authority with respect to this question, I note that section 39(3) of the Act provides:
“(3) Where a consent to medical or dental treatment has been given by a person who is not authorized to give that consent under this section, the consent may be taken as valid if the person providing the medical or dental treatment did not know that the person giving the consent was not authorized to do so or reasonably believed that the person giving the consent was authorized to do so.”
Given, as stated above, that medical practitioners who accepted consent from JN and her mother were operating under an interpretation that has been promoted by the Board and possibly the Public Guardian, it would be reasonable for those medical practitioners to have believed that those persons were authorised to do so.
Again, the Board is not the relevant authority with respect to this question, but given that JN and her mother were acting on ostensible authority imbued by the Board and possibly the Public Guardian, based on the prior interpretation of the ‘person responsible,’ it would be particularly harsh if section 42 were to apply in these circumstances.
The submissions of the parties:
The Public Guardian offered agreement with the draft statement of reasons but such agreement was tempered with concerns as to some broader operational consequences of the interpretation and its impact on her office.
KN and ON and UX accepted the Board’s draft statement of reasons.
MN and BDT did not offer comment on the statutory interpretation issue, but indicated their preference that a member of the family be the ‘person responsible’ for BN.
QDT provided the only substantive response to the statutory interpretation issue. He submitted that section 4(1) of the Act would only require that the Public Guardian be the person responsible if she is appointed as a full guardian. He stated that section 4(1):
“is in many respects vague and imprecise, and as such cannot used to extend the responsibilities of a statutory office which has limited and strictly defined responsibilities. What the section does do, I submit, is to define the order of priority of suitably qualified persons to be the “person responsible”.”
He also argued that section 4(1):
“… is incapable of and is not intended in all cases to conclusively define who is the person responsible, let alone provide a source of authority to define the powers of the Public Guardian.”
And that such an interpretation is supported by sections 25 and 26 of the Act. He said:
“Section 25 sets out the powers of a full Guardian, and it specifies health and medical matters as being within these powers. Section 26 sets out the powers of a limited Guardian. A limited Guardian has the powers of a full Guardian as specified in section 25, but only if the Board so specifies. In this case the Board did not specify health and medical matters as being within the power of the limited Guardian.”
With respect, I consider QDT’s first submission to be misguided. Section 31 of the Act relates to ‘any matter relating to the scope of the guardianship order or the exercise of any power by the guardian under the guardianship order.’ This provision relates to guardians generally, as does section 4(1) of the Act. The Act does not distinguish between the Public Guardian or a private individual in the operation of a guardianship order. The powers and functions of the Public Guardian are established in section 15 and 17 of the Act. The interpretation of section 4 offered in the draft statement of reasons arising from the provision of advice and direction does not alter (or extend) her statutory functions – it merely clarifies the extent of her powers under the order made 20 September 2013.
With respect to QDT’s second submission, from the Board’s perspective, the terms of section 4(1) are sufficiently precise and are intended to operate as definitions. The term ‘guardian’ is very clear as it is defined in section 3 of the Act. Other categories of ‘persons responsible’ are further defined within section 4 (for example, the person having the care of the other person is clarified in section 4(1)(c)(iii)). QDT made reference to the other categories of ‘persons responsible’ and criticised the categories generally as being incapable of operation in some circumstances. For these reasons, he considers the whole section should not be interpreted ‘rigorously’ and as a result the Board should not ‘declare’ a person as ‘person responsible’ by relying on section 4(1). In essence, he says that these definitions ought not to be taken as definitions.
Again this submission is, with respect, misguided. It is a matter for a medical or dental practitioner to decide from whom he or she seeks substitute consent to medical or dental treatment. Section 4(1) creates a list of persons from which that practitioner can confidently seek substitute consent for treatment of an incapable patient. Hence the Board does not ‘declare’ a person to be another person’s ‘person responsible’ – especially, as footnoted above [2], that identity may not be fixed and may change over time as the person’s relationships change. What the Board is endeavouring to achieve in this case is some clarity for the existing guardian as to the scope of her powers. If her powers include the role of ‘person responsible’ she will likely advise medical practitioners of that fact and be available should BN require consent to medical treatment. However, the Board’s advice to the guardian does not bind the medical practitioners who will still need to satisfy themselves that they have the requisite consent to treat.
QDT’s third argument was that the Board’s interpretation is inconsistent with the terms of sections 25 and 26. Section 25(2)(e) starts with the words “except as provided in Part 6.” From that the Board concludes that the operation of Part 6 (including section 43 which empowers a ‘person responsible’ to consent to treatment) is exempted from section 25 of the Act and the powers of a full guardian under that provision. Section 26(1) states that a limited guardian has “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” - those powers having been broadly described in section 25. Therefore the exemption in section 25(2)(e) applies equally to a full or limited guardian. It is highly unlikely that the legislators intended a limited guardian to have a greater range of powers than a full guardian – which would be the result if a limited guardian could make Part 6 decisions, but a full guardian could not. This argument also appears to run counter to QDT’s first argument that the interpretation in the Board’s draft statement of reasons could only apply to a full guardian.
For the reasons set out above, the Board does not accept QDT’s arguments regarding the statutory interpretation question. The Board adopts the reasoning set out in paragraphs 8 to 25 herein.
Other matters raised in submissions:
In his submission, QDT suggested that MN should be considered as ‘person responsible’. As noted above, this is not a role which is appointed by the Board. However other parties were then invited to make comment on this issue. BDT indicated that he would be willing to take on that responsibility. MN preferred that BDT or QDT take on the role. From their correspondence, these suggestions clearly caused a level of discomfort for KN and ON.
It is possible for the Board to vary an order by advice and directions and the Board could possibly have appointed a separate limited guardian powers to decide health care matters pursuant to section 31 in this decision. Such an appointment might confer status upon someone as the ‘person responsible’ for BN. However such a possibility:
1)Was not identified at the commencement of these proceedings, and
2)Would be contrary to the reasons expressed by the Board at the hearing on 20 September 2013 and in the statement of reasons published on 15 October 2013 regarding the need for an independent guardian.
Accordingly, such an appointment should not be made outside of a hearing.
The submissions raised questions about the operation of the ‘person responsible’ hierarchy. The following is offered to provide clarity about its operation but is not an order of the Board.
The role of a ‘person responsible’ is not one to which one nominates or is ‘appointed’. It occurs by operation of law and according to the facts. Relevant facts that were evident from the hearing last year which would assist a medical or dental practitioner to decide from whom to take substitute consent to treatment would include:
(i)BN has a guardian, being the Public Guardian. A medical practitioner would be entitled to rely on her consent to treatment (and only her consent) while her appointment continues. She is entitled to represent to a registered practitioner that she has the power to consent.
When that appointment expires and the Public Guardian is no longer his guardian:
(ii)ON is BN’s spouse. A medical practitioner would be entitled to rely on her consent to treatment (and only her consent). She would be entitled to represent to a registered practitioner that she has the power to consent.
If ON is permanently unable to give consent:
(iii)The person other than ON having the care of BN (i.e. the person who was providing domestic services and support) immediately before BN resided in XXXX was KN. A medical practitioner would be entitled to rely on her consent to treatment (and only her consent). She would be entitled to represent to a registered practitioner that she has the power to consent.
If KN is permanently unable to give consent:
(iv)MN, BDT or QDT might variously qualify as close friends or relatives and a medical practitioner would be entitled to rely on their consents to treatment. One of them would be entitled to represent to a registered practitioner that she or he has the power to consent. Which one a medical practitioner would select would depend on the extent to which each of them maintains both a close personal relationship with BN through frequent personal contact and a personal interest BN's welfare.
The role of a ‘person responsible’ is not relevant in emergency situations where section 40 applies. It is not appropriate for a medical practitioner to accept consent to non-emergency treatment from a person ranked lower in the ‘person responsible’ hierarchy just because a person ranked higher is absent or temporarily unavailable. In such a case, the medical practitioner ought to defer treatment until the highest ranked person is available to consent to or refuse treatment. Note also section 42 prohibits a person from representing to a medical practitioner that he or she is the person responsible where they lack that authority. It is highly unlikely that while ON or KN are alive any of MN, BDT or QDT would qualify as BN’s ‘person responsible’ unless they were appointed by this Board as his guardian. Should they falsely represent that they had that authority to a medical practitioner (while other persons are higher ranked in the hierarchy), they would be in breach of the Act.
Conclusion:
The application to review the guardianship order made 20 September 2013 is dismissed on the grounds that it is lacking in substance.
For reasons set out above, the Public Guardian is advised, of Board’s own motion pursuant to section 31 of the Act, to assume the functions of ‘person responsible’ for BN while he is a represented person, i.e. during the currency of the order.
Anita Smith
PRESIDENT
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