[2010] TASSC 56
COURT: SUPREME COURT OF TASMANIA
CITATION: D v Guardianship and Administration Board [2010] TASSC 56
PARTIES: D
v
GUARDIANSHIP AND ADMINISTRATION BOARD
FILE NO/S: 937/2010
DELIVERED ON: 30 November 2010
DELIVERED AT: Hobart
HEARING DATE: 22, 26 and 29 November 2010
JUDGMENT OF: Wood J
CATCHWORDS:
Administrative Law – Judicial review – Powers of courts under judicial review legislation – Stay of proceedings and interlocutory relief – Stay of operation of decision – Decision of Guardianship and Administration Board giving consent to medical treatment.
Judicial Review Act 2000 (Tas), ss17(2), 20(g), 21 and 26(2).
Guardianship and Administration Act 1995 (Tas), ss36 and 45.
Aust Dig Administrative Law [1084]
REPRESENTATION:
Counsel:
Applicant: In Person
Respondent: Notice of submission filed
Attorney-General: P Turner
Solicitors:
Applicant: In Person
Respondent: Director of Public Prosecutions
Attorney-General: Director of Public Prosecutions
Judgment Number: [2010] TASSC 56
Number of paragraphs: 71
Serial No 56/2010
File No 937/2010
D v GUARDIANSHIP and ADMINISTRATION BOARD
REASONS FOR JUDGMENT WOOD J
30 November 2010
On 9 November 2010, the Guardianship and Administration Board made an order enabling D to receive specified medical treatment without her consent. This is an application by D that the order made by the Board be suspended until an application under the Judicial Review Act 2000 ("the JR Act") has been heard and determined.
D has been an inpatient of the Royal Hobart Hospital since her admission to the Emergency Department on 5 October 2010 by the Crisis Assessment Triage Team and Tasmania Police. D's admission arose from concerns about her mental state. Since D's admission she has been a psychiatric patient at the Royal Hobart Hospital on an involuntary basis. Orders have been made under the Mental Health Act 1996 with respect to D remaining in hospital as an involuntary patient. While an inpatient D has refused medical treatment. This meant that up until the Board's order on 9 November, D was a patient at the Royal Hobart Hospital but not receiving medical treatment.
The application which brought about the Board's order was made by a member of the medical team at the Royal Hobart Hospital, Psychiatrist, Dr Michael Evenhuis. The application was made under the Guardianship and Administration Act 1995 ("the GA Act") for the Board to consent to medical treatment of D involving treatment with one of three alternative anti-psychotic medications. This application for substituted consent was heard by the Board on 5 November 2010.
The Board may only make an order for consent to medical treatment if satisfied of matters that are set out in the GA Act, s45.
Section 45 provides, in part:
"45 Consent of Board
(1) On hearing an application for its consent to the carrying out of medical or dental treatment the Board may consent to the carrying out of the medical or dental treatment if it is satisfied that —
(a)the medical or dental treatment is otherwise lawful; and
(b)that person is incapable of giving consent; and
(c)the…
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- [2010] TASSC 56
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CaseChat Overview and Summary
The court considered the powers of the judiciary under judicial review legislation to provide interlocutory relief. The primary focus was on whether the court could stay the operation of the GAB's decision. The court examined whether the granting of such relief was appropriate in the context of medical treatment decisions and weighed the potential harm to D against the public interest in respecting the GAB's decision. The court also had to consider the urgency and the likelihood of success on the merits of D's claims.
After reviewing the relevant legislation and case law, the court concluded that it had the power to grant an interlocutory stay under certain conditions. The court found that D had demonstrated a serious question to be tried and that the balance of convenience favoured staying the GAB's decision. The court recognised the importance of ensuring that medical decisions made on behalf of individuals were subject to appropriate scrutiny and that the rights of individuals were protected. Consequently, the court granted the stay, halting the medical treatment until further order.
The court ordered that the medical treatment consented to by the GAB should not proceed until the substantive application for judicial review was determined. The court also directed that D's legal representatives could seek further interim relief if necessary, pending the outcome of the judicial review proceedings. The decision underscores the court's role in overseeing administrative decisions that significantly impact individuals' rights and wellbeing.
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