BQZ – Application for Appointment of a Guardian and an Administrator by Child Protection Services

[2014] TASGAB 21

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

BQZ – Application for Appointment of a Guardian and an Administrator by Child Protection Services

BQZ (Guardianship and Administration) [2014] TASGAB 21

REASONS FOR DECISION

Anita Smith (President)
Lindi Wall (Member)
Carolyn Wallace (Member)

Date of hearing: 26 November 2014

Administration – need for represented person to have more experience of managing his money
Guardianship – community treatment order made by the Magistrates Court operating substantially like a supervision order – questions as to validity of order – an assumption that the order is valid means that the proposed represented person is not in need of a guardian

Guardianship and Administration Act 1995 s. 20, 25, 51
Criminal Justice (Mental Impairment) Act 1999 s 18, 31C

1. The proposed represented person, BQZ, has just turned 18 years of age.  He has been the subject of an order pursuant to the Children, Young Persons and Their Families Act 1997 which lapsed on his 18^th birthday.  Child Protection Services has applied for the appointment of a guardian and an administrator to manage roles and decisions that have hitherto been managed by that service. 

1. With respect to the application for appointment of a guardian, the Board must be satisfied that BQZ:

   (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 person or circumstances, and
   (c) is in need of a guardian.

Similarly with respect to the application for appointment of an administrator, the Board must be satisfied that BQZ:

(a) is a person with a disability, and
(b) is unable by reason of the disability to make reasonable judgements in respect of matters relating to all or any part of his estate, and
(c) is in need of an administrator of his estate.

1. The application was accompanied by:

   ·     A Health Care Professional Report by Damien Minehan, Clinical Psychologist, dated 21 July 2014

   ·     A School Psychologist Report by [a psychologist], dated 31 October 2011

   ·     A Care Team Plan for BQZ prepared for the Magistrates Court on 16 October 2012

   ·     A Memorandum of an Order under the Criminal Justice (Mental Impairment) Act 1999 made 22 November 2012

   ·     A Memorandum of an Order under the Community Protection (Offender Reporting) Act 2005 made 22 November 2012 and associated documents

   ·     An NDIS Plan printed 16 May 2014

2. In the course of the Board’s investigation of the application, the following additional documents were supplied:

   ·     Risk assessment report by Damien Minehan dated 22 July 2014

   ·     Report by Dr. Naomi Tomlinson, Paediatrician dated 25 July 2014

   ·     Opinion by Crown Law regarding the validity of an Order under the Criminal Justice (Mental Impairment) Act 1999 made 22 November 2012

   ·     Emails from BQZ’s disability advocate

   ·     Email from XXXX, BQZ’s accommodation provider

   ·     Report by Dr. Michael Evenhuis to Magistrates Court 9 July 2012

   ·     GAB Investigator’s report

3. A hearing was convened on 26 November 2014 at which the following persons attended:

   BQZ (proposed represented person)
   Jane Blake (Disability Advocate)
   Child Protection Services represented by Gill Shilling (Applicant) and Maddie Smart
   QZ (father)
   SZ (mother) and her partner, WD
   TX (sister)
   XXXX (accommodation provider) represented by MN, BW, and SX
   Public Trustee represented by Joanne McGuiness
   Public Guardian represented by Michael Condon

Is BQZ a person with a disability?

1. The reports by medical practitioners were consistent in stating that BQZ has an intellectual disability. Psychologist, Damien Minehan, assessed BQZ as having a Full Scale IQ of 54. This diagnosis was not seriously challenged at the hearing. The Board is satisfied that BQZ is a person with a disability for the purposes of sections 20 and 51 of the Guardianship and Administration Act 1995 (the Act). 

Is BQZ unable by reason of the disability to make reasonable judgments in respect of his person and circumstances and his estate?

1. Mr. Minehan’s report notes that BQZ experiences deficits in his expressive and receptive communication, his impulse control, his capacity for new learning, his susceptibility to influence and his planning and reasoning skills.  With respect to financial matters, Mr. Minehan stated that BQZ has:

   “little concept of week to week expenses”,
   “appears to have a very poor grasp of day to day financial management”, and he

   “lacks the ability to comprehend and integrate information to make reasoned decisions.”

With respect to personal decisions, Mr. Minehan noted that BQZ expressed some unrealistic accommodation choices and stated that BQZ:

“may make decisions regarding accommodation, supervision, relationships and proximity to potential offending victims that are likely to result in poor outcomes for him and potentially others.”

1. BQZ and his disability advocate argued that, because of the restrictive nature of Child Protection Services’ intervention, he has not been offered the opportunities where he might demonstrate competence in making personal and financial decisions.  The Board accepts that he has had limited opportunities to make independent decisions, however, the evidence suggests that his lack of skill is largely due to his intellectual disability.  While he may develop skills to make reasonable decisions with experience, his current operating capacity is poor with respect to the areas under examination in this application.  The Board is satisfied that BQZ is unable by reason of his disability to make reasonable judgments in respect of all or any matters relating to his person or circumstances and to his estate.

Is BQZ in need of an administrator?

1. BQZ’s funds have been managed by the Secretary of the Department of Health and Human Services pursuant to the terms of the Child Protection order until he turned 18 years of age. He has accumulated savings of $12,000.00.  The applicant holds concerns that, if those funds are released to him, he will spend the funds in an impulsive manner or may be taken advantage of by others. 

1. BQZ’s funds are very closely controlled by XXXX which has a set budget for his expenses and he is allowed $40 per week in cash which he considers inadequate.  Staff of that service gave evidence that when he is allocated his phone credit under the budget each week it is used up within a day.  He often uses his $40 cash allowance to purchase more phone credit.  

2. While the Board is satisfied that BQZ is in need of an administrator, the Board encourages the administrator and XXXX to give BQZ more responsibility to manage his money within the terms of the administration order, consistent with the duties of an administrator pursuant to section 57 of the Act, so that he might develop budgeting skills and learn the consequences of making impulsive spending decisions. 

Is BQZ in need of a guardian?

1. In respect of the question of whether BQZ is in need of a guardian, the application stated:

   “Due to his intellectual disability BQZ does not have the capacity to care for himself.  He is not able to ensure that he attends college, training and appointments at the correct time and location.  There are concerns that his mother does not have the capacity to be protective around the risk that he poses to his younger siblings and towards other children.  

   BQZ is subject to a Community Treatment Order which requires oversight by a Care Team comprising representatives of Child and Youth Services, Forensic Mental Health Services, Education, care providers and other professionals until he turns 19 years of age, but the order does not confer guardianship on any organization which would ensure requirements are followed.”

1. That order provides as follows:

   “On the 22^nd day of November 2012 in the Magistrates Court held at Hobart on charges of:
   1 count of Indecent Assault
   1 count of sexual intercourse with a young person under the age of 17 years

   The court found the defendant not, not guilty of the offences pursuant to section 18(2)(e) of the Criminal Justice (Mental Impairment) Act 1999 the defendant is released and Community Treatment Order is made, within the meaning of the said Act, until July 2015 in the following terms;
   BQZ must

   a)   Follow all reasonable directions of Child Protection Services

   b)   Continue to attend [an educational facility] two days per week

   c)   Attend if directed to do so by Children and Youth Services any program to transition to [an educational facility]

   d)   Attend education sessions at the Family Planning Tasmania as directed by Children and Youth Services in relation to any relationships and sexual health education and intervention programs

   e)   Live where directed by Children and Youth Services

   f)   Use the internet only in accordance with the directions given to him by Children and Youth Services

   g)   Use any internet and social media only in accordance with the directions given to him by Children and Youth Services

   h)   Attend all programs as directed by Children and Youth Services during school holidays

   i)   Attend the [X] project as directed by Children and Youth Services

   j)   Attend all appointments with medical practitioners or other treatment providers as directed by Children and Youth Services

   k)   That BQZ must engage in the Youth Justice Community Service Order Program as directed by Children and Youth Services

   l)   Engage with [Y Service] for mentoring support as directed by Children and Youth Services

   m)   These conditions will continue until 30 July 2015.”

1. The applicant supplied a Crown Law opinion with respect to this order which stated that:

   “In the absence of the Order of 22 November 2012 having been overturned on appeal or varied in some manner, it remains in force.  The appeal period has long expired.  It is not a matter for the Guardianship Board to question the validity of such an Order.  The Order is in force and will continue to do so until 30 July 2015 unless varied or revoked in the meantime.”

The opinion suggested that the order is inappropriate because there was no evidence to support a finding of insanity.  The author of the opinion appears to have missed that the learned Deputy Chief Magistrate found BQZ “not, not guilty” after a special hearing, which resulted from a finding that he is unfit to plead because of his intellectual disability.  The order is not inappropriate for the reasons that the author suggests.  However, there are cogent reasons to question its validity.

1. A ‘community treatment order’ made under the Criminal Justice (Mental Impairment) Act 1999 between 2006 and 2014 had the meaning given by section 31C which stated:

“31C. Community treatment orders
(1) In this section –
specified means specified in a community treatment order.
(2) A community treatment order is an order –

a)   requiring the defendant to take or submit to the administration of medical treatment as specified or as decided by a specified medical practitioner or a medical practitioner of a specified class; or

b)   requiring the defendant to attend as an outpatient at a specified treatment centre at specified intervals or as directed by a specified medical practitioner or a medical practitioner of a specified class; or

c)   requiring the defendant to comply with other specified requirements or other requirements decided by a specified medical practitioner, another specified person or a medical practitioner or other person of a specified class –

for the term, not exceeding one year, specified in the order.
(3) Once made, a community treatment order is taken to be a community treatment order made under Division 2 of Part 7 of the Mental Health Act 1996.” (emphasis added)

1. Representatives of Child Protection Services at the hearing stated that the learned Deputy Chief Magistrate preferred a community treatment order to a supervision order because a breach would result in hospitalisation, not detention in a secure facility which he considered would be too harsh. A community treatment order is limited to issues of medical treatment, would not extend to supervision of social and educational issues and is usually limited to the relationship between a medical practitioner and a patient. Given its duration (2 years, 8 months) and its terms, in substance the order appears to be a supervision order. However section 18(3) states that only the Supreme Court may make a supervision order.

1. The Crown Law opinion also states that because there is now no child protection order “there is no lawful basis for Child Protection Services to be directing BQZ to do any of those things after 30 July 2014.”  Again, the Board considers this to be in error.  If it was a valid supervision order, the order is authority of itself and the presence or absence of a child protection order is irrelevant under the terms of such an order.  Representatives of Child Protection Services indicated at the hearing that there is no legislative impediment to them continuing to provide services to an adult and that they frequently are involved with 19 year old persons in transition from their service to an adult service.

2. Usually a supervision order would nominate Forensic Disability Services or Forensic Mental Health Services to supervise an adult in the manner described in the order.  Apparently Mary Evans of Community Forensic Mental Health Services is already engaged with BQZ.  It may be appropriate to amend the order by substituting a Forensic service for Child Protection Services if the order can continue as a supervision order. 

3. Although the Board is at odds with the Crown Law opinion, we accept that, despite its curious form, the Order is in force and will continue to be so until 30 July 2015.  The Board’s view is that an application ought to be made for the Deputy Chief Magistrate or the Supreme Court to amend and clarify the order. 

4. A guardian generally substitutes consent for an adult’s decisions about accommodation and health care and other personal matters listed in section 25 of the Guardianship and Administration Act 1995.   If the ‘community treatment order’ is in force, then the matters in which a guardian could usually make a decision would be overridden by Child Protection Services because of their authority under the order.  The existence of the order (although flawed) means the guardian’s role is futile. 

1. For these reasons, the Board considers that the application for appointment of a guardian is misconceived and, while the order is in force, BQZ is not in need of a guardian.  As there are serious questions as to the validity of the order which are beyond the jurisdiction of this Board to decide, the Board recommends that the order be reviewed by a Court. 

2. The application for appointment of a guardian is dismissed.

Conclusion:

After hearing an application for guardianship and administration in respect of BQZ (hereinafter called the ‘represented person’)

The Board was satisfied that the represented person

•is a person with a disability, and

•is unable by reason of the disability to make reasonable judgements in respect of his estate, and

•is in need of an administrator;

THE BOARD ORDERS
1.  That The Public Trustee be appointed as the represented person’s administrator.
2. That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
3.  That the administration order remains in effect to 25 November 2017.

AND FURTHER, the Board being satisfied that there is no need for the appointment of a guardian, the application for guardianship is dismissed.

Anita Smith  Lindi Wall  Carolyn Wallace
PRESIDENT  MEMBER  MEMBER

Statement of reasons delivered 1 December 2014