BTM (Guardianship)
[2018] TASGAB 31
•26 October 2018
GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON
BTM (Guardianship) TASGAB 31
STATEMENT OF REASONS
Before: Virginia Jones (Chair)
Fred Lester
Sue Aylett
Guardianship - NDIS - Signing of Service Agreements - Conflict of interest where Co-ordinator of Supports for PRP is employed by Agency who manages PRP's NDIS plan - no family or other person to advocate for PRP- NDIS planning process and annual review of Plan- Role of the Public Guardian
Guardianship and Administration Act 1995
National Disability Insurance Scheme Act 2013 (Cth)
On Friday 26 October 2018 the Guardianship and Administration Board (‘the Board’) heard an application for guardianship for BTM. The application was filed by Ms Kimbilli Johnson, the co-ordinator of supports for the proposed represented person (BTM).
The following persons attended the hearing:
·BTM;
·Ms Kimbilli Johnson, the applicant, HR Plus Tasmania;
·Ms Christine Gordon, Li-Ve Tasmania, Coordinator;
·Ms Roslyn Hodge, Li-Ve Tasmania, Acting Manager;
·Ms Jacqueline Sytsma, support worker from Noss;
·Ms Tanya Petrie, Li-Ve Tasmania, Service Manager; and
·Ms Kylie Hillier, Office of the Public Guardian.
The Board had the following documents before it:
·Administration Order made by the Board dated 11 December 2015;
·Application for Guardianship dated 31 August 2018;
·Health Care Professional Report dated 25 June 2018;
·Public Trustee Report dated 4 December 2017.
As a result of the hearing the Board was satisfied BTM is a person with a disability and is unable, because of his disability to make reasonable judgments in respect of his personal circumstances, and is in need of a guardian. The full details of the order appear at the end of this statement of reasons.
Guardian, Ms Kylie Hillier has requested a statement of the reasons in relation to the Board’s decision.
Requirements of the Guardianship and Administration Act 1995
When the Board assesses an application for the appointment of a guardian it needs to be satisfied of the matters in section 20 of the Guardianship and Administration Act 1995 (‘the Act’). They are, that BTM:
(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 must also balance the principles in section 6 of the Act, which are:
(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.
Is the proposed represented person a person with a disability?
In respect of BTM, Dr Diana Pullen provided a Health Care Professional Report to the Board dated 25 June 2018. Dr Pullen reported BTM has a significant intellectual disability. The condition has been evident since birth, and is static.
In addition Dr Pullen noted BTM has scoliosis and arthritis, and has mobility impairments, which are likely to further deteriorate. Dr Pullen’s evidence was unchallenged at the hearing.
10. The Board is satisfied BTM is a person with a disability within the meaning of the Act.
Is the proposed represented person incapable by reason of the disability of making reasonable judgments?
11. In the report of Dr Pullen noted above, it was indicated BTM has impairments in orientation to person, place or time, expressive communication, receptive communication, impulse control, capacity for new learning, susceptibility to influence and planning and reasoning skills.
12. Dr Pullen also reported BTM is non-verbal and uses behaviour, signs, expressions and vocalisations to communicate his needs. It was reported he ‘probably’ has the capacity to follow one step directions when presented in a short concise way, and when offered prompts and real objects. However, he has limited functional living skills and requires support for many activities of daily living.
13. Dr Pullen noted BTM has no capacity to make reasonable decisions about where he should live, no capacity to understand the nature and effect of medical treatment, and cannot determine the services he could access under the NDIS.
14. The Board was satisfied BTM is incapable of making reasonable judgments about his person and circumstances.
Is BTM in need of a guardian?
15. BTM is 45 years old. He resides in a home in Launceston supported 24 hours a day, 7 days a week.
16. The Board received evidence at the hearing that BTM is a participant in the NDIS Scheme.
17. The National Disability Insurance Scheme Act 2013 (Cth) (the ‘NDIS Act’) requires that the CEO of the NDIA must facilitate the preparation of a plan in accordance with the NDIS Rules for each participant in the NDIS (s32, NDIS Act). The plan must include a statement of the participant’s goals and aspirations, and a statement of the participant’s supports (s33, NDIS Act).
18. Section 31 of the NDIS Act contains the principles relating to plans, which include:
· The plan be individualised and directed by the participant;
· Where relevant, consider the role of family, carers and other significant persons; and
· Be underpinned by the right of the participant to exercise choice and control.
19. Evidence was received at the hearing that BTM has a NDIS Plan and that there are current service agreements in place for BTM. BTM’s NDIS plan is to be reviewed every 12 months.
20. The applicant is BTM’s coordinator of supports. She is employed by HR Plus Tasmania, who manages BTM’s current NDIS plan. As a result, there is the potential for a conflict of interest to arise in the planning process, and in ensuring that BTM’s needs are met with the appropriate supports.
21. BTM is nonverbal and he has little to no ability to make his wishes known. As a result of his disability he cannot negotiate through the planning process nor comprehend the information contained in service agreements.
22. Evidence was received at the hearing that BTM does not have any family, or other person in his life that could advocate for him. In the past, BTM’s brother was involved in decision making for him, but he had not been seen nor heard from in the last 3 years.
23. The applicant submitted the NDIS has advised her that BTM requires a substitute decision maker to negotiate the supports to be provided for BTM in service agreements, and to sign the service agreements.
24. The applicant submitted that the Public Guardian was the appropriate substitute decision maker to represent BTM in the NDIS planning process.
25. Ms Hillier of the Office of the Public Guardian opposed the making of the order and made the submissions that:
· there was no current need for the appointment of a substitute decision maker;
· as the Public Trustee had been appointed administrator it could sign the agreements, as it had already done;
· it was the Office of the Public Guardian’s position that the coordinator of supports is the person who would be continually involved in determining an individual’s needs, and have a much better idea what supports are required than a guardian;
· no decisions were to be made; and
· she would effectively be a rubber stamp to sign off on the agreements.
Determination
26. On the evidence before the Board, the Board was satisfied there was a need for a guardian. The need was to appoint an independent person to advocate for BTM in the NDIS planning process, and to avoid the potential for a conflict of interest in the role of the coordinator of supports in the NDIS planning process.
27. The Board follows the reasoning as set out in TOU [2018] TASGAB 1 at paragraphs 16 and 23, and as adopted in BQC [2018] TASGAB 16 at paragraph 24.
“[16] TOU’s disability clearly prevents her from being able to make major decisions such as those involved in NDIS planning. Further, TOU has no person to support her or advocate for her through the planning process and she has no way in making her wishes known. TOU has not had the benefit of a guardian advocating on her behalf in the development of the NDIS plan and its implementation and providing appropriate support.
[23] There may be areas of support that have not been clearly considered in the current plan that will need to be considered in the second and future plans. There needs to be the selection of services that are the subject of the funding and an independent mind needs to be brought to this process. I am satisfied that these are decisions that TOU cannot make herself or with advocacy support, due to her impaired decision making capacity. TOU has complex needs and it is very important that she have someone to advocate for her and make decisions throughout this process”.
28. The Board also notes the decision of SLRT [2017] QCAT 92 which outlines the role of guardians in these types of matters, as referred to in BQC [2018] TASGAB 16 at paragraph 25.
“ [20]... It is clear from the evidence that a range of decisions are required in the very near future. SLRT has been registered and enrolled in the NDIS. She has undergone the planning session and a plan has been provided. It is obvious that the plan will meet most of the immediate goals and objectives relating to support for SLRT, but it’s not also difficult to see that there might be other areas of support that have not been clearly considered in the current plan. I’m satisfied that even if the current plan is adequate, there needs to be the choice and the implementation of a coordinator. There needs to be the purchase or the selection of services that are the subject of the funding, and then the ongoing need to be involved in ensuring that the plan is adequate on an ongoing basis, and, in future years, that any modifications or additions to the plan reflect the realistic goals and needs of SLRT. I’m satisfied those decisions are decisions that SLRT cannot make herself, due to her impaired decision-making capacity.
[21] Lastly, on the evidence before me, SLRT cannot engage with an advocate, so, therefore, cannot be supported through that means in reaching her own decisions about who should be providing services, what those services are, and how the funding is used in relation to those services. I’m satisfied that in her case, in SLRT’s case, there is an absence of informal decision-making support”.
29. Despite there being a coordinator of supports for BTM there is the potential for a conflict of interest to arise, and therefore an independent mind needs to be brought to the NDIS planning process.
30. As noted in both TOU and SLRT (cited above), even though there is a current NDIS plan in place for BTM, there may be areas of support that have not been considered in the current plan that need to be in future plans.
31. Further, the Board does not accept the submission of the Office of the Public Guardian that the guardian will merely act as a ‘rubber stamp’ to sign off on agreements. The Board’s view is, as referred to in both TOU and BQC, that due to BTM’s inability to express his views about the NDIS plan and process, the role of the Guardian is to advocate for BTM and to ensure that the plan and any future plans continue to meet BTM’s needs. That clearly falls within the purview of the role of the Public Guardian in this appointment.
32. The Guardian in the course of the hearing made submissions, summarised at paragraph 25 above. The Office of the Public Guardian has previously raised these same matters, several times, in other proceedings and they have been the subject of determination in TOU [2018] TASGAB 1 and BQC [2018] TASGAB 16. While the Board is not bound by its previous decisions, for reasons of comity of decision making, it should decide matters consistently unless there is a demonstrated and compelling basis to depart from them. Comity of decision making has been cited by other Tribunals as applicable and appropriate.
33. In N Mamic v Hobart City Council [2018] TASRMPAT 5 at paragraph 20 the Tribunal stated:
“While the Tribunal is not bound by its previous decisions, those decisions ought to be followed both as a matter of consistency and comity, unless a substantial error in reasoning can be identified in forming a different view, and there is no such error in the Tribunal’s reasoning in Henry Design
34. This was followed in The House Family Office Pty Ltd v Hobart City Council [2018] TASRMPAT 6 para 43; R Kasem v Hobart City Council & Ors [2018] TASRMPAT 8 para 34; C Boland v Clarence City Council and Anor [2018] TASRMPAT 4 at para 35.
35. In Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 639-640 the court said:
“Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.”
36. In Anteden Pty Ltd v Glen Eira CC [2000] VSC 366, Balmford J said at 26:
“The AAT was the predecessor of the Tribunal, with a similar jurisdiction under the Act, and for this purpose can be regarded as the same tribunal. Given the wide jurisdiction of the Tribunal in planning matters, there would be many cases where the circumstances were such as to give room for a divergence of views between differently constituted tribunals. However, the issue in question is undubitably a matter of law (see paragraph 19 above), as to which different considerations apply from those in planning matters. Further, the AAT in Chasers Cabaret was presided over by His Honour Judge Fagan, giving greater weight to the decision on that question of law, and I note that on the hearing of the matter each party was represented by senior and junior counsel. The comment of the Tribunal, cited in paragraph 24 above, courteously expressed though it is, is not in my view sufficient explanation of the failure of the Tribunal to follow that decision, given the obvious desirability of consistency in Tribunal decisions in matters such as that in issue here. However, I am not to be taken as finding that the absence of express justification for that failure to follow the decision of the AAT necessarily constitutes an error of law on the part of the Tribunal. Section 98(1)(b) of the VACT Act provides that the Tribunal “is not bound by . . . any practices or procedures applicable to courts of record, except to the extent that it adopts those . . practices or procedures”. Nevertheless, the Tribunal should always be conscious of the importance of consistency in decisions on questions of law, which is fundamental to any system aimed at the attainment of justice”.
37. As the above authorities demonstrate, the Board must be satisfied that a substantial error in reasoning has occurred or a compelling basis exists to depart from previous determinations for reasons of comity of decision making. A Model Litigant, accordingly, should approach the reagitation of established rulings on that basis. A party may exercise rights of review in the Supreme Court with respect to determinations of the Board (see s 76) where they disagree with a ruling of the Board. It is unhelpful for the Office of the Guardian to seek to repeatedly revisit determinations on this point, in substantially similar terms, without identifying a compelling basis to depart from the previous rulings as set out in the case law above.
38. The Board determines that a guardian is required to advocate for BTM and to ensure his needs are met now, and in the preparation and implementation of future NDIS plans. His plan should be reviewed annually to ensure it meets his changing needs, and be in his best interests.
39. The Board also heard evidence BTM has a number of other medical conditions. The Board considered whether a guardian was required to make medical treatment decisions however determined there was no immediate need, and in adopting the least restrictive outcome, did not make an order for medical treatment decisions.
Conclusion
40. After hearing an application for a guardianship order in respect of BTM (hereinafter referred to as ‘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 their person and circumstances; and
·is in need of a guardian.
The Board Orders
That the Public Guardian be appointed as the represented person’s guardian.
That the powers and duties of the guardian are limited to decisions concerning advocating and/or making any decisions on the represented person’s behalf in respect of any NDIS plan development, plan implementation and/or plan review or appeal.
That the order remains in effect to 25th October 2021.
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