D v Guardianship and Administration Board - [2010] TASSC 56

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read D v Guardianship and Administration Board and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] TASSC 56
Decision Date: 30 November 2010

CaseChat Overview and Summary

The matter before the court involved D, who sought judicial review of a decision made by the Guardianship and Administration Board (GAB). The decision in question pertained to D's medical treatment, where the GAB had given consent to certain procedures. The case was heard in the Supreme Court of New South Wales. D argued that the GAB's decision was flawed and that it should be reviewed by the court. The central legal issue the court had to address was whether the court had the authority to grant an interlocutory stay of the decision, effectively halting the medical treatment until the merits of the case were determined.

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.

Orders