EH (Guardianship)
[2013] TASGAB 30
•23 December 2013
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
EH – Application by Mental Health Services for the appointment of a guardian
EH (Guardianship) [2013] TASGAB 30
REASONS FOR DECISION
Anita Smith (President)
Date of hearing: 23 December 2013
Guardianship – need for a guardian – interaction between guardianship and provisions of the Mental Health Act 2013
Guardianship and Administration 1995 s. 20
On 19 November 2013 the Board received an application from Mental Health Services for appointment of a guardian for EH. EH is a represented person, being the subject of an administration order appointing the Public Trustee until 12 May 2014. He had been the subject of an emergency guardianship order limited to decisions about health care and accommodation issues between 18 November and 16 December 2013. EH has been the subject of numerous proceedings before the Board since 2005. A guardianship order made on 13 May 2011 was revoked on 22 May 2013 because there was no current need for a guardian.
The applicant sought a fresh appointment of a guardian because EH wished to leave XXXX accommodation at Hobart and move to unsupported accommodation with friends at Cygnet. EH has end-stage renal failure and requires dialysis three times weekly. He has no vehicle and limited funds for transport and there are no suitable dialysis facilities in or near Cygnet. The applicant was concerned that EH’s desired move was inimical to his mental and his physical health and sought a guardian to substitute those decisions on his behalf. It was also this concern that prompted the application for an emergency guardianship order. At the time of the hearing, EH was detained under a continuing care order (CCO) under the Mental Health Act 1996 at the Royal Hobart Hospital. He also had changed his mind, saying he simply wanted a holiday at Cygnet.
To appoint a guardian, the Board must be satisfied that EH is a person with a disability and that by reason of that disability he is incapable of making reasonable judgments about his person and circumstances. The Board must also be satisfied that EH is in need of a guardian and assess the eligibility of any proposed guardian. In this case the Public Guardian was proposed for appointment.
The application was heard on 23 December 2013, having been adjourned from 19 December 2013 at EH’s request. The following persons attended the hearing:
EH – represented person
Sarah Campbell – EH’s solicitor
Glen Dearing – Mental Health Services (Applicant)
Jessica Watson – The Public Trustee
Anne Perks – Office of the Public Guardian
Dr. David Lang gave evidence by telephone during the hearing also but was not present for the entire hearing.
In respect of the question of whether EH is a person with a disability, the Board had a Health Care Professional Report by Dr. Rupak Dasgupta, a psychiatrist with Mental Health Services. His opinion is that EH has schizophrenia. A report by Dr. Imran prepared in respect of the CCO and Dr. Graham’s written application for an emergency guardianship order stated that he has schizoaffective disorder. Giving evidence at the hearing, Dr. Lang indicated that either diagnosis may be appropriate. In his view schizoaffective disorder was probably most appropriate because EH experiences chronic schizophrenia but with periods of elevated mood and increased grandiosity.
Through counsel, EH accepted that he experiences mania. Directly, he said that Dr. Parton had told him he definitely wasn’t schizophrenic because his memory is too good. He said that he sees signs and visions and hears voices in his head. He believes God speaks to him as a prophet. Letters EH wrote to the Board prior to the hearing had a similar theme.
The Board was satisfied that EH is a person with a disability.
Dr. Dasgupta, Dr. Graham and Dr. Lang were consistent in their views that EH’s desire to live with friends at Cygnet represents an unreasonable judgment about his accommodation in light of his serious medical needs. Dr. Lang stated that EH’s capacity to make reasonable judgments about accommodation issues can fluctuate. He noted that the plan to live in Cygnet was completely unrealistic (for instance he thought his friends would pay for taxis to Hobart for him to attend dialysis) but he did ‘eventually back down’ from that view. Dr. Lang considered that his capacity to make such decisions may depend on the options at hand.
Dr. Dasgupta’s report was ambiguous with respect to EH’s capacity to make reasonable judgments about health care. However, Dr. Lang was unequivocal in his view that EH lacks capacity because he denies that he has a mental illness and habitually declines medication on that basis. He explained that unless he understands the psychiatric condition that he has, EH is unable to make reasonable judgments about accepting treatment for that condition.
EH said that the treatment was responsible for a number of noxious side effects or alternatively blamed his current ‘mania’ on the inability to smoke cigarettes while at the Royal Hobart Hospital. Dr. Lang acknowledged that there may be some side effects from treatment but these were always assessed and monitored on a risk-benefit analysis. Dr. Lang’s evidence was frequently interrupted by EH, sometimes using insulting language or expressing grandiose notions. Dr. Lang indicated that this was typical of all interactions with EH, the result which is that he has never achieved a sensible conversation with EH about treatment. He said EH willfully refuses to engage in a therapeutic relationship.
The Board was satisfied that EH lacks the ability to make reasonable judgments about where he lives temporarily or permanently and about his health care.
The applicant submitted that EH was in need of a guardian to resolve the issue of his accommodation. His tenancy at the XXXX premises at Hobart is in jeopardy. EH stated at the hearing that a particular person in the XXXX organisation and he have a very poor relationship. EH does not consider that he is in need of supported accommodation but is now of the view that he would like a holiday at Cygnet rather than to live there permanently. These facts indicate that EH is in need of a guardian to decide whether he has leave in Cygnet and on what conditions and also to decide about permanent accommodation in the event that he cannot remain at the XXXX premises.
The applicant also sought the appointment of a guardian to give consent to depot medication on EH’s behalf. As noted above, EH habitually declines medication due to concerns (real and/or otherwise) about side-effects and due to his belief that he does not have a mental illness requiring treatment. EH is compliant with treatment for his renal failure and submits to dialysis willingly.
The Board considered that EH is in need of a guardian but that such a need is limited to issues related to psychiatric treatment and temporary or permanent accommodation. If there should be some overlap between the need for consent to psychiatric treatment and the need for consent to treatment of physical conditions, the Board left the guardian the option of applying at short notice for an extension of the order. In this manner the Board considers it has protected EH’s best interests while limiting the order to maximise his freedom of decision and action.
When the Mental Health Act 2013 commences, such decisions as have been granted to the guardian in this application may be the subject of orders pursuant to that Act. If an order is made, and in any event after 30 June 2014, a guardian will have no authority to make such decisions. The Board made this order in anticipation of the commencement of and transition to the new scheme under the Mental Health Act 2013.
At the hearing, EH stated that he was happy for Anne Perks to make decisions about where he lives but not about his medical treatment. Noting his wishes, the Board considers it appropriate to appoint the Public Guardian (of whom Ms. Perks is a delegate) as his limited guardian.
CONCLUSION:
After hearing an application by Mental Health Services for a guardianship order in respect of EH (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 person and circumstances; and
•is in need of a limited 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:
a)where the represented person is to live either permanently or temporarily; and
b)consent to any health care that is in the best interests of the represented person for his psychiatric condition(s) and to refuse or withdraw consent to any such treatment.
That the guardian is granted leave to seek an extension to this order at short notice if necessary.
That the order remains in effect to 30 June 2014, or until an order is made under the Mental Health Act 2013 whichever is sooner.
Anita Smith
PRESIDENT
Request for statement of reasons received: 24 December 2013
Statement of reasons delivered: 2 January 2014
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