EKR (Guardianship) - [2009] TASGAB 2

GUARDIANSHIP AND ADMINISTRATION BOARD

HOBART

E.K.R an application for guardianship by Mental Health Services

Neutral Citation: EKR (Guardianship) [2009] TASGAB 2

REASONS FOR DECISION
Anita Smith (President)
Paul Mayne (Member)
Catherine Wilding (Member)

19 February 2009

Guardianship – powers of a guardian – Guardianship and Administration Act 1995 and Mental Health Act 199, are complementary but not competing forms of protection – role of guardian as a custodian – role of medical practitioner as custodian – methods of consenting on behalf of an incapacitated person to entry to hospital – meaning of ‘voluntary’ or ‘involuntary’ in a guardianship context – effect on guardianship legislation of ‘approved hospital’ status - defences to false imprisonment – ‘least restrictive alternative’ in context of guardianship or continuing care order – meaning of ‘guardian’ in s.17 MHA – person may have a mental illness but not meet criteria for MHA – role of guardianship legislation in meeting the objectives of mental health legislation - role of the Public Guardian as independent statutory officer – requirement of Public Guardian to adhere to Solicitor General’s advice

Guardianship and Administration Act 1995 – ss. 3, 6, 15(1)&(6), 19(1), 20, 21, 25, 26, 28, 31(4)

Mental Health Act 1996 – ss. 3, 4, 5, 7, 13, 17, 25(b), 31, 32, 93

Financial Management and Audit Act 1990

EKR is a 51 year old woman who is presently living at Millbrook Rise, a facility managed by Mental Health Services. A representative of Mental Health Services made an application for guardianship pursuant to section 19 of the Guardianship and Administration Act 1995 (GAA) when EKR expressed a desire to leave the Millbrook Rise facility. The applicant was concerned that EKR lacks the ability to undertake necessary activities of independent daily living which impacts upon her health and wellbeing. On a recent occasion when EKR left the facility for a backpacker’s accommodation, she was swiftly ejected from that accommodation due to her inappropriate habits with regard to faecal management. The applicant is concerned that upheaval in her accommodation arrangements undermines her mental wellbeing. The applicant is also concerned that she is vulnerable to exploitation by others.

Does EKR have a disability?

A ‘disability’ is defined as follows:
"disability" means any restriction or lack (resulting from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function) of ability to perform an activity in a normal manner;
Evidence from Dr Soin, Dr Benjamin, Dr McArthur and psychologist, Keith Pettit confirms that EKR has a disability or disabilities. EKR agrees that she has a disability, which she calls schizophrenia. She states that she is presently unwell and, sadly, described herself as someone who “used to be normal.”
Because she experiences a lack of ability to perform certain activities in a normal manner resulting from a loss or abnormality of mental and psychological function, EKR is a person with a disability for the purposes of section 20(1)(a) of the Act.

Does EKR’s disability render her incapable of making reasonable judgments?

EKR described an incident with regard to her accommodation that occurred at the end of 2008 where under the influence of a male friend at the Millbrook Rise complex, she discharged herself from that complex and became very unwell. Ultimately she was admitted to the Department of Psychological Medicine at the Royal Hobart Hospital and then returned to Millbrook Rise. At the hearing, she expressed contentment to remain at Millbrook Rise but this apparently changes frequently and she can spontaneously demand discharge. She presently takes the medications prescribed by her doctors, but would prefer alternate medication, Modecate, which her doctors will not prescribe because of its propensity to very serious side effects.

According to the Health Care Professional Report completed by Dr Soin, EKR has schizoaffective disorder and borderline personality traits. Dr McArthur, Dr Soin and Dr Benjamin report that EKR has schizoaffective disorder or schizophrenia, borderline intelligence and her judgment skills are poor. Dr Soin states that she:
“… makes very impulsive decisions when unwell then she is completely erratic and not capable of making reasonable decisions.”
There is additional medical information from Dr Benjamin and an historical report by psychologist, Kelly Pettit showing that she experiences a borderline level of cognitive function when compared to her normative peers. This information confirms that EKR is a person with a disability or disabilities and that she lacks the ability to make reasonable judgments because of that disability or disabilities.
There does not appear to be any doubt that EKR meets the criteria for section 20(1)(a) and (b) of the GAA.

Is EKR in need of a guardian?

The applicant is applying for the appointment of a guardian with, at least, powers to decide where EKR lives permanently or temporarily and to consent to her health care. The Board must be satisfied that there is a need for EKR to have a guardian for these issues.
The applicant asserts that EKR needs a guardian to ensure that she “… attends treatment and to advocate for EKR when she spontaneously attempts to discharge herself or take unstructured/unsupported leave.” It is relevant to issues discussed later in this decision to note that Millbrook Rise, where she lives and may take leave from, is an approved hospital within the meaning of the Mental Health Act 1996 (MHA).
Factually, this is not dissimilar to many applications that have come before the Board and been granted since its inception in 1997. In this instance, however, the evidence relating to a need for a guardian includes a consideration of whether the decisions of a guardian can have any legal effect.

It has been argued that the decisions of a guardian can have no legal effect with regard to EKR’s residence at Millbrook Rise (other than as a ‘person responsible’ for the purposes of sections 5 and 25 of the MHA). It is, therefore, necessary to embark on an examination of the guardian’s powers to make decisions about where EKR lives permanently or temporarily and to consent to her health care.

The scope of the Guardianship and Administration Act 1995 (GAA):

The GAA is an Act to enable persons with a disability to be represented by a guardian or administrator and to provide for consent to medical and dental treatment for persons with a disability. Powers conferred under the Act must be exercised according to the principles set out in section 6.
The GAA subsumed the functions of the Mental Health Act 1963 and in particular (for the purposes of this decision) the roles of the guardian, the committee of the person and the Guardianship Board. The GAA also establishes the role of the Public Guardian. The Public Guardian is an independent statutory officer as confirmed by section 15(6) of the GAA.

Appointment of a guardian:

If the Board is satisfied that a person:
a)Is a person with a disability;
b)Is unable by reason of the disability to make reasonable judgments in respect of all or any matters relating to his or her person; and
c)Is in need of a guardian
Section 20 enables the Board to make a full or limited order appointing a guardian.

A Guardian’s powers:

The GAA is the source of a guardian’s powers.
Section 25 of the GAA states:
“Authority of full guardian
A guardianship order appointing a full guardian confers on the full guardian in respect of the represented person all the powers and duties which the full guardian would have in Tasmania if he or she was a parent and the represented person his or her child.
Without limiting subsection (1), an order appointing a full guardian confers on the person named as full guardian the power –
(a)        to decide where the represented person is to live, whether permanently or temporarily; and
…
(e) except as provided in Part 6, to consent to any health care that is in the best interests of the represented person and to refuse or withdraw consent to any such treatment.
(3)        Where a decision is made, action taken, consent given or act done by a full guardian, the decision, action, consent or act has effect as if it had been made, taken, given or done by the represented person and the represented person had the legal capacity to do so.
(4)         A full guardian may, on behalf of a represented person, sign documents and do all such things as are necessary to give effect to any power or duty vested in the guardian.” (Emphasis added.)
Similarly a limited guardian’s powers are set out in section 26 of the GAA:
“Authority of limited guardian
(1)        A guardianship order appointing a limited guardian confers on the limited guardian such one or more of the powers and duties in respect of the represented person which are conferred on a full guardian under this Act as the Board may specify in the order.
(2)        Where a decision is made, action taken, consent given or act done by a limited guardian, the decision, action, consent or act has effect as if it had been made, taken, given or done by the represented person and the represented person had the legal capacity to do so.
(3)        A limited guardian may, on behalf of a represented person, sign documents and do all such things as are necessary to give effect to any power or duty vested in the guardian.”
The office of the Public Guardian is established by Part 3 of the GAA and the Public Guardian is eligible for appointment as a guardian pursuant to section 21 and section 15(1)(h) of the GAA.

A full guardian appointed by the Board under Part 4 (or a limited guardian with the relevant powers) has the power to decide where the represented person is to live, whether permanently or temporarily by reason of section 25(2)(a) of the GAA. A person may ‘live’ temporarily in a hospital, including an approved hospital. If there is any doubt as to whether a person ‘lives’ in a hospital, including an approved hospital, one need only refer to section 3 of the MHA where it states:
“3. Interpretation
In this Act, unless the contrary intention appears –
“approved hospital” means a hospital or part of a hospital approved by the Minister for the care and treatment of involuntary patients with mental illnesses; …
“hospital” means a place equipped for the care of patients on a live-in basis (whether or not provision is also made for the treatment of outpatients);” (emphasis added)
In any event, the powers set out in Section 25(2) of the GAA do not limit the powers of a guardian established in section 25(1) to make decisions of a quasi-parental nature. A parent can give competent consent for his or her child to be housed in a hospital for ordinary medical treatment or observation, so presumably a guardian can also consent and that consent has the effect set out in section 25(3) and 26(2) GAA.
A guardian is also recognised as a ‘person responsible’ under section 5(1)(c)(i) of the MHA. The ‘person responsible’ may apply for an order for the admission and detention of a person as an involuntary patient in an approved hospital pursuant to section 25(b) of the MHA.
As a potential applicant, a guardian’s role (acting as person responsible under the MHA) is equal to the role of an ‘authorised officer’. Authorised officers are appointed by the Minister under section 13 of the MHA. The Mental Health Regulations 1999 (MHR) state:
“5. Authorised officers
For the purposes of section 13 of the Act, a person who is included in the following classes of persons is an authorised officer:
a police officer of the rank of sergeant or above;
a police officer who is in charge of a police station.”
It is relevant to issues discussed later in this decision to note that Police officers are provided additional powers under Part 3 of the MHA to take a person with a mental illness into protective custody.

The Solicitor General’s advice to the Public Guardian:

The Public Guardian emailed to the President of the Board (and others) copies of the following written advice from the Solicitor General:
30 January 2009 “Clarification of Guardianship Orders and Mental Health Act”
5 February 2009 “Clarification of Guardianship Orders and Mental Health Act”
6 February 2009 “Clarification of Guardianship Orders and Mental Health Act”
While the first advice was related to a different represented person, the latter two related to an emergency order that the Board issued regarding EKR on 30 January 2009. The Board assumes that its unsolicited receipt of these opinions (on the days that they were written) is a waiver of the privilege otherwise attached to that advice. The Acting Public Guardian confirmed that she was relying on those opinions at the hearing.

In those opinions, the Solicitor General has advised the Public Guardian that the role of a guardian under the MHA is limited to the ‘person responsible’ role under section 25(b)MHA. This is technically incorrect as the guardian may also have a role in consenting to medical treatment under part 6 of the GAA as established by section 31(b) of the MHA. However, subject to that exception, the Board agrees that the role of a guardian has no further effect under the MHA.
The Solicitor General stated in the opinion dated 5 February 2009 that:
“The effect of this advice is that any involuntary admission of EKR to an approved hospital within the meaning of the Mental Health Act, where that admission is solely by virtue of powers exercised or actions taken by you pursuant to the present order, is unlawful.”
In essence, the Solicitor General appears to argue (at least) that the MHA has codified the circumstances under which a person who has a mental illness can be hospitalised in an approved hospital and that the effect of the scheme in the MHA is to cancel out any other powers that a guardian may have with respect to a person with a mental illness. The opinions also appear to suggest that the MHA has ‘covered the field’ with respect to compelling hospitalisation in circumstances where a person has not given his or her competent consent to hospitalisation.

The Board does not accept these arguments because the Solicitor General has:
i.Defined the powers of a guardian according to the wrong statutory scheme,
ii.Misunderstood the scope of the MHA with regard to consent to hospitalisation,
iii.Misunderstood the historical and modern context of guardianship laws vis a vis mental health laws,
iv.Lacked an appropriate consideration of the principle of least restrictive alternative,
v.Overstated the role and function of ‘approved hospitals,’
vi.Overstated the effect of section 17 MHA on the powers of a guardian,
vii.Misinterpreted the emergency order and reasons for decision,
viii.Been inconsistent between this advice to the Public Guardian and previous advice to the Board,
ix.Failed to acknowledge that some persons with a mental illness will fall within the jurisdiction of the GAA but not the MHA, and
x.Failed to take account of the effect of the objects in section 6 MHA.

Defining the powers of a guardian according to the wrong statutory scheme:

The Solicitor General’s opinion is fundamentally flawed in the Board’s opinion in that it seeks to define the powers of a guardian by reference to the MHA. A guardian’s powers are derived from the GAA and there are some incidental powers which arise under the legislation such as the MHA, the Justices Act 1959, the HIV/AIDS Preventive Measures Act 1993 and the Personal Information Protection Act 2000.

As the Board understands it, the Solicitor General makes this proposition:
“Because a guardian has powers under sections 5 and 25 of the MHA, any other action taken by a guardian pursuant to prior-enacted legislation or any other law in respect of the custody of a person with a mental illness is unlawful.”
If that were an appropriate manner in which to interpret the MHA then the following proposition is also true:
“Because a sergeant of police has powers under section 25 and Part 3 of the MHA and regulation 5 of the MHR, any other action taken by a sergeant of police pursuant to prior-enacted legislation or any other law in respect of the custody of a person with a mental illness is unlawful.”
If that proposition is correct then a sergeant of police may not arrest a person with a mental illness (but a police constable may). A sergeant of police can arrest a person with a disability because the MHA did not have the effect of cancelling out all other custodial powers of a police officer. Similarly, the MHA did not have the effect of cancelling out all other custodial powers of a guardian.
Further, if the Solicitor General’s proposition is correct then it is possible that a guardian’s ability to disclose information about a represented person is limited to that provided for under the Personal Information Protection Act 2000, or even that the ability of a guardian to consent to medical testing of the represented person is limited to that set out in HIV/AIDS Preventive Measures Act 1993.

If the Board has correctly summarised the proposition in the Solicitor General’s advice, then that proposition is simply unsustainable and not supported by the plain words in the legislation.

Misunderstanding the scope of the MHA with regard to consent to hospitalisation:

The Solicitor General’s opinions state:
“In my opinion, it is very unlikely that Parliament intended the provisions of the Guardianship Act (sic) relating to a guardian’s power to make decisions regarding a person’s accommodation and medical treatment to circumvent the procedures and safeguards in the Mental Health Act with regards to involuntary hospitalisation.” (Opinion dated 30 January 2009 to the Public Guardian) and
“If the patient does not have a mental illness for the purposes of the Mental Health Act and or does not satisfy the criteria for involuntary hospitalisation in an approved hospital then placement in an approved hospital against his will is not appropriate or lawful.” (Opinion dated 6 February 2009 to the Public Guardian)
The Solicitor General appears, in his opinions, to have elevated the MHA to a codification of the ability to hospitalise a person with any disability and created a unique scheme of protection of the rights of persons hospitalised without their active and informed consent. He appears to suggest that any hospitalisation in an approved hospital is unlawful unless it is: (i) pursuant to the consent of a competent person (patient) or (ii) pursuant to the terms of the MHA and the Alcohol and Drug Dependency Act 1968 (ADDA).

There are many people with disabilities who may require hospitalisation (in a place that happens to be an ‘approved hospital’ such as the Royal Hobart Hospital) and lack the capacity to give informed consent, but for whom the MHA and ADDA will not apply, such as:
·     A person who is intoxicated but is not alcohol or drug dependent
·     A person in a state of delirium resulting from an infection
·     A person incapacitated by reason of a head injury or an intellectual disability
·     A person in a coma of unknown origin

There is no suggestion that Parliament intended to impose these limitations on hospitalisation of incapacitated persons (or to override the defence of necessity to an accusation of false imprisonment) with the enactment of the MHA[1]. It would seem that Parliament’s purpose was not to codify circumstances where a person over 14 years of age can be hospitalised without their express and informed consent, but rather to create a limited scheme where a medical practitioner has authority to detain a person with a mental illness in an approved hospital against their will. In the Board’s view, by enacting this scheme which enables certain practices by medical practitioners, Parliament did not defeat all other schemes relating to hospitalisation of persons incompetent of giving valid consent or undermine the range of other protections available to incompetent patients under other enactments. In the Board’s view, a guardian’s power under the GAA to decide that a represented person will live in a hospital, and the legislative scheme to protect the rights of that person while hospitalised, survives the enactment of the MHA subject to some very specific limitations discussed in paragraph 35.

Misunderstanding of the historical and modern context of guardianship laws vis a vis mental health laws:

[1] See The Hon. M. Cleary, Tasmania, House of Assembly, Parliamentary Debates (Hansard), 2 October 1996 as quoted in paragraph 57 of this decision.

As stated above, the GAA subsumed the functions of the Mental Health Act 1963 and in particular the roles of the guardian, the committee of the person and the Guardianship Board under that Act.
Guardianship laws are of ancient origin but mental health laws are relatively modern commencing with the Madhouses Act of 1774. The development of mental health legislation has been influenced over centuries by a conflict between the rights of the person with a psychiatric illness (as advocated by lawyers) and the pursuit of control over patients by medical practitioners. Sir Henry Theobald, in 1924, wrote: [2]
“Reforms of 1889 -1891 … Persons interested in the subject [of safeguarding against improper admissions to psychiatric hospitals] were divided into two camps; there were the medical men who desired early and easy treatment of persons afflicted with mental disease, and at the same time demanded protection against the risks they ran in certifying persons as lunatics, and there were the lawyers who attached more weight to the liberty of the person than to the possibility of a cure by facility for compulsory confinement.”
These theses and antitheses continue into modern legislation and the debate does not appear to have been resolved. However, the MHA is the modern expression of this long running debate and Parliament’s most recent attempt at synthesis of the issues. Mental health legislation countenances the overrunning of the refusal of a competent patient and is not an incapacity based scheme. This was confirmed with regard to section 32 of the MHA by Solicitor General’s advice to the Board dated 19 August 2004.
[2] Theobald, Sir H.S., The Laws Relating to Lunacy, Stevens and Sons, Limited Law Publishers, London 1924, page 78

Because of the association between involuntary detention (or institutionalisation) and the history of incidents of abuse of inpatients, mental health legislation since the Madhouses Act have been intrinsically linked with regulation of the management of particular facilities for people with mental illnesses. Modern provisions, such as section 93 MHA, protect against historical abuses of a medical practitioner’s role in institutions. Guardianship legislation has not had the historical association with the management of facilities that mental health legislation has.

Guardianship is an incapacity based scheme which commenced in equity as a system of safeguarding the property of adults with a disability but evolved to include welfare responsibilities. Australian guardianship legislation has developed differently to most other common law countries in that the jurisdiction has come to rest with tribunals rather than courts[3] and that there has been particular significance placed on decisions about the person as being at least equal in importance to decisions about the estate.[4] Therefore modern Australian legislation imposes particular duties upon a guardian to act beyond mere custody and medical treatment of the represented person towards his or her full participation in the life of the community.[5]

However, guardianship remains a system of custody in the ordinary sense of the word. For instance, the ordinary definition of a guardian is:
“Guardian … 1 a defender, protector or keeper. 2 a person having legal custody of another person and his or her property (e.g. a minor) when that person is incapable of managing his or he own affairs…”[6]
[3] For more information, see Carney, T. and Tait, D., The Adult Guardianship Experiment, Tribunals and Popular Justice New South Wales, The Federation Press, (1997), Chapter 2
[4] This emphasis was initiated in the Report of the Minister’s Committee on Rights and Protective Legislation for Intellectually Handicapped Persons Melbourne Vic Gov Pr (1982) (‘The Cocks Committee Report’) and then adopted in all states and territories except the Northern Territory between 1986 and 2000.
[5] See for example section 27 of the GAA.
[6] The Australian Oxford Dictionary, 2^nd Ed, Moore, B., Oxford University Press 2004

Although the powers and duties of a guardian under the GAA have augmented the role and duties of a guardian, the GAA retains the role of a guardian as a custodian[7], similar to historical enactments as a committee of the person:
“Of Duties of the Committee of the Person: These relate to the personal care of the lunatic, and, in the absence of express direction by the court, imply the duties of fixing his residence, selecting his attendants, regulating his establishment, and making all other provisions for his maintenance, support, and comfort. In the performance of these duties the committee has regard to the allowance made for the lunatic’s maintenance …”[8]
As custodians, guardians may utilise legislative provisions for enforcement of their decisions[9]. Such lawful coercion must be balanced against natural personal freedoms under guardianship laws.[10] Compulsion is a necessary part of guardianship practice.[11]
[7] Section 25 GAA
[8]Pope, H.M.R., M.A. A Treatise on the Practice of Lunacy; London, H. Sweet, Law Publisher (1877) Page 101
[9] See for instance section 28 of the GAA
[10] For further discussion see Carney, T. Challenges to the Australian Guardianship and Administration Model? [2003] ElderLRev 8
[11] See also Rosenman, S., ‘Mental Health Law: An idea whose time has passed?’ (1994) 28 Australian and New Zealand Journal of Psychiatry 560 at page 564

The role of a custodian (and the power to compel certain decisions or actions) is traditionally associated with a guardian whether in relation to parents and children or to guardians and adults with disabilities. However, a medical practitioner is not a traditional custodian of a person. Mental health laws facilitate a medical practitioner to step outside of his or her traditional role as an advisor and provider to become a custodian. Enabling a medical practitioner to become a custodian and regulating that role does not cancel out the roles and abilities of other persons with power to exercise custody under other laws. This was never the intention of mental health laws.

The breadth and general utility of the Australian incapacity (guardianship) jurisdiction with regard to persons with mental illness has not, to the Board’s knowledge, been considered at appellate court level but it has prompted national and international practitioners and academics to question whether there remains any need for mental health laws in modern society. [12]
[12] See for example: Allen, M., ‘Why Specific Legislation for the Mentally Ill?’ (2005) 30 Alternative Law Journal 103; Campbell, T and Heginbotham, C., Mental Illness Prejudice, Discrimination and the Law Dartmouth, Aldershot (1991); Campbell, T., ‘Mental Health Law: Institutionalised Discrimination’ (1994) 28 Australian and New Zealand Journal of Psychiatry 554; Carney, T., Tait, D., Chappell, D. and Beaupert, F. ‘Mental Health Tribunals: “TJ” implications of weighing fairness, freedom, protection and treatment.’ (2007) 17 Journal of Judicial Administration 46; Dawson, J. and Szmulker, G., ‘Fusion of Mental Health and Incapacity Legislation’ (2006) 188 British Journal of Psychiatry 504; Radden J, Forced Medication, Patients’ Rights and Values Conflicts (2003)10 Psychiatry, Psychology and Law 1; Rees, N., ‘Learning from the Past, Looking to the Future: Is Victorian Mental Health Ripe for Reform?’ (Paper presented at the Mental Health Review Board of Victoria’s 20^th Anniversary Conference, 6 Dec 2007); Richardson, G., ‘Autonomy, Guardianship and Mental Disorder: One Problem, Two Solutions’ (2002) 65 Modern Law Review 702; Rosenman, S., ‘Mental Health Law: An idea whose time has passed?’ (1994) 28 Australian and New Zealand Journal of Psychiatry 560; Wand, T. and Chiarella, M., ‘A conversation: Challenging the relevance and wisdom of separate mental health legislation’ (2006)15 International Journal of Mental Health Nursing 119

Tasmanian legislation is unique in the extent to which the mental health legislation recognises the jurisdiction of the guardianship legislation. By providing powers to the Board to determine medical treatment issues (section 31(b) and 32 MHA), the Tasmanian Parliament recognised a convergence of issues even to a greater extent than legislation in South Australia where the Guardianship and Administration Board are delegated with the functions of the Mental Health Tribunal.

Despite the interaction of the jurisdictions in Tasmania, there is very little actual duplication between the MHA and GAA meaning that they are complementary not competing forms of protection, as the following examples bear out:
The terms of section 20 of the GAA bear no resemblance to section 24 of the MHA. The test for appointing a guardian with certain powers is different to the test for a continuing care order.
An order appointing a limited guardian may be restricted to decisions about where that person may live (mere custody). However an order may include additional terms such as those which restrict visitors, or those which set up post hospitalisation plans for accommodation, case management or other support. A guardian consenting to the person temporarily living in a hospital and perhaps consenting to medication or other issues does so in light of a raft of personal protections (such as annual reportage to the Board,[13] particular principles that the guardian must observe in making decisions,[14] recourse to the Board for additional powers and advice and direction,[15] and review of appointments[16]). A guardian’s powers of custody are significantly broader than the powers of custody granted to medical practitioners under the MHA. A guardian’s decisions are subject to supervision by the Board, not by the Mental Health Tribunal.
A continuing care order and a guardianship order are not interchangeable any more than a restraint order (keeping a violent parent away from a child) and a child protection order (placing that child in the care of the secretary) might be. They serve different purposes and are created according to different tests but sometimes have the same the effect.
[13] section 66 GAA
[14] section 27 GAA
[15] section 31 GAA
[16] section 67 GAA
The terms voluntary and involuntary are terms that are specific to the MHA and relate only to that Act. When a guardian consents to hospitalisation on behalf of a person with a mental illness, that does not make them ‘voluntary’ in the ordinary sense of the word, neither does it make them ‘involuntary’ for the purposes of the MHA. It just means that the decision to hospitalise has been authorised according to an alternative source of power (much like a police sergeant might arrest a person with a mental illness and take them into custody according to a different source of power). Technically, when a guardian makes a decision about where a represented person lives, he or she is substituting his or her consent for the consent of the represented person. This is an entirely different conceptual scheme to the voluntary/involuntary scheme of the MHA which operates regardless of a person’s capacity to refuse.
To the extent that the provisions of the MHA and the GAA may be inconsistent, clearly the MHA would prevail as it was created later in time and related to a specific subset of the persons to whom the GAA applies. Examples of the likely extent and effect of any inconsistency are as follows:
i.A medical practitioner issuing a continuing care order under section 28 of the MHA can do so even if a guardian appointed for the represented person (patient) objects to the represented person’s (patient’s) hospitalisation.
ii.A guardian has no power to discharge a represented person (patient) detained under a continuing care order under section 28 of the MHA.
iii.A guardian has no greater power than a competent patient would have on his or her own behalf to compel the admission or treatment of a represented person (patient) under the MHA where the medical practitioners believe that admission or treatment is futile or excessive. (i.e. The guardian has powers over the represented person but not over the medical practitioners.)
The Board does not accept that the effect of that inconsistency has the effect stated by the Solicitor General because the Board believes that the Solicitor General misunderstood the historical and current relationship between guardianship laws and mental health laws and underestimated the custodial powers of a guardian.

Lack of consideration of the principle of least restrictive alternative:

Section 6 of the GAA states, in part:
“6. Principles to be observed
A function or power conferred, or duty imposed, by this Act is to be performed so that –
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 … ”
Section 7 of the MHA states, in part:
7. Principle of minimum interference with civil rights
In exercising powers conferred by this Act in relation to an involuntary patient, forensic patient or person subject to a supervision order or community treatment order, the following principles must be observed:
restrictions on the liberty of the patient or person and interference with that patient's or person's rights, dignity and self-respect must be kept to the minimum consistent with the need to protect that patient or person and other persons and, in relation to a forensic patient, the good order and security of the secure mental health unit; …”
Both of these legislative principles are most often referred to as principles of the ‘least restrictive alternative.’ In the case of the GAA, the significance of that particular principle was confirmed by His Honour Mr. Justice Underwood in Public Trustee v Blackwood, King and Baxter [17] when he approved the following statement from a judgment in a Victorian case: Re M & R & Guardianship & Administration Board:[18]
"In my view, it is the evident intent of the legislature that guardianship (particularly in its plenary form) should be the last resort to be utilised where no other viable, and less restrictive, protective means is available to meet the needs of the person. This involves considering whether the person to be represented is likely to benefit from guardianship as distinct from the person seeking to be appointed. Even where guardianship is considered necessary in the best interests of the person, it is the intention of the legislature that the least restrictive form available be applied."
[17] No. 130/1998, Tas Sup Crt 21 October 1998, at page 6
[18] (1988) 2 VAR 213
Mindful of the principles of finding the ‘least restrictive alternative,’ the practice of the Mental Health Tribunal and the Guardianship and Administration Board has been to assume that where a guardian has consented to hospitalisation on behalf of an incapacitated person, an order under the MHA is not usually necessary[19] and conversely where there is a continuing care order, powers for a guardian to consent to hospitalisation are not necessary.
The presence of a continuing care order may be taken into account by the Board as part of the test for a “need” for a guardian to be appointed (section 20(1)(c) GAA) for the purposes of temporary accommodation decisions.
[19] Indeed, it was this circumstance that has prompted the series of opinions from the Solicitor General to the Public Guardian.
It has been the consistent view of both the Board and the Tribunal that having both a continuing care order and a guardianship order for temporary accommodation is inconsistent with the least restrictive alternative principles of both Acts. However, if the Solicitor General’s opinion is correct, then it is likely that some people will require both a guardianship order for medical treatment and post-hospital accommodation and a continuing care order for hospitalisation, where previously that situation has been avoided by having an appropriately limited guardianship order.

Overstatement of the role and function of ‘approved hospitals’:

The Board finds that the importance that the Solicitor General places on the status of an ‘approved hospital’ has become overblown. The approval of hospitals arises in Division 1 of Part 2 of the MHA. The purpose of approving hospitals under the MHA is for the Minister to ensure that the places where MHA orders are enforced (i.e. places where potentially competent persons with mental illness are held and treated against their will under the custody of a medical practitioner) meet certain standards of operation and to facilitate the periodical monitoring of those standards by the Official Visitors.[20] This is consistent with the historical development of mental health laws in response to historical abuses.
[20] Part 11 MHA, particularly section 77(2)

It would appear from the Solicitor General’s advice in this regard that he considers that a guardian might have powers to consent to the hospitalisation of a person in, say, the psychological medicine unit of St Helen’s Private Hospital in Hobart which is not subject to monitoring by official visitors, but not to an approved hospital such as the Royal Hobart Hospital. This interpretation would defeat the possible of scrutiny by the Minister and the Official Visitors and undermine the scheme of the MHA, not to mention be inimical to the principles of acting in the best interests of the represented person (patient) under both the GAA and the MHA.
It overstates the effect of the creation of a scheme for approval of hospitals to assert that it excludes the custodial authority of a guardian.

Overstatement of the effect of section 17 MHA on the powers of a guardian:

Section 17 of the MHA states:
“Admission of patients
A person may be admitted as a patient to an approved hospital –
(a)        if the person is of or over the age of 14 years, with the consent of the person; or
(b)        if the person is under the age of 14 years, with the consent of his or her parent; or
(c)         under an initial order, a continuing care order or an authorisation for temporary admission.”
The Solicitor General bases his opinion, in part, upon section 17 of the MHA stating that recognition of parental ability to consent to hospitalisation means that a guardian has been deliberately excluded from the voluntary/involuntary scheme of the MHA. That is correct. As stated above, the powers of a guardian to decide whether a person lives in a hospital, temporarily or permanently, do not fit into the MHA scheme but arise from the custodial powers assigned to a guardian by the GAA. Section 17 reflects the voluntary/involuntary dichotomy established by the MHA which is not referable to the authority of a guardian appointed under the GAA.

The Board notes that the MHA definition of a ‘parent’ includes a ‘guardian’ and a person acting in loco parentis. But ‘guardian’ in the context of section 17 MHA cannot mean a guardian appointed under the GAA, as the appointment of a guardian under the GAA can only be made for a person over 18 years of age[21]. The Board presumes, therefore, that the purpose of section 17 is chiefly to establish the authority of medical practitioners (and other officers) acting under the MHA to accept the consent of children aged between 14 and 18 years of age rather than to have any effect upon regulating or restricting the custodial powers of guardians appointed under the GAA.
[21] Section 19(1) GAA

While the Board considers that the above interpretation is available from the plain words of the MHA, discussion on 5 September 1996 in the Tasmanian Legislative Council by the Minister for Community and Health Services (in a prepared answer to a specific question in Committee by the Hon. C. Rattray) confirms that the intention of Parliament in enacting section 17 of the MHA was to bring the consenting age of children into line with a national Health Ministers policy on the age of consent to medical treatment in force at that time.

Misinterpretation of the Emergency Order and Reasons for Decision:

The Solicitor General has criticised the order of the Board in that the emergency order issued 30 January 2009 with respect to the proposed represented person fails to direct the guardian to consent to a specific place of residence. He then assumes, however, that there is some significance attached to the fact that a copy of the order was faxed to Millbrook Rise.

The Board appoints a guardian to make a decision. It is for the guardian to decide where a person will live, not the Board, unless the Board is giving a direction pursuant to section 31 of the GAA. If the Board pre-determined every decision of the guardian, the role of the guardian as a decision maker would be otiose.

Further, the applicant for the emergency order was Dr Benjamin who was applying in his part-time and temporary capacity as a member of the treating team of Millbrook Rise. It is appropriate, and of very little significance in terms of the guardian’s ability to make a decision, that the applicant be informed of the outcome of the application. Faxing the order to Millbrook Rise had no further significance than that.

Inconsistency of current advice of Solicitor General with advice previously given to the Board:

Following a joint request for advice between Mental Health Services and the Board, the Solicitor General gave advice in two letters dated 1 October and 8 October 2008 (“the October opinions”) about the circumstances in which it is appropriate to keep a person who lacks capacity in secure facilities. That approach for advice was made jointly so as to have a consistent approach to this issue between the two agencies. Pertinently, the request for advice referred to, particularly, the Roy Fagan Centre and the Transitional Care Unit and noted that both facilities are (or are in) approved hospitals within the meaning of the Mental Health Act 1996 (MHA).

The October opinions confirmed that the three methods by which a person who lacks capacity can be lawfully held in secure facilities (including those hospitals) are:
·     Pursuant to a guardian’s decision
·     Pursuant to a mental health order
·     As a matter of necessity under common law

The opinion was presented in terms of possible defences to any accusation of false imprisonment. The Solicitor General also opined that a guardian’s decision held some advantages in a human rights context that the defence of necessity did not possess.

The Solicitor General’s current advice to the Public Guardian is that housing a person in an approved hospital under a guardian’s consent is unlawful. To this extent the current opinions are inconsistent with the advice given in the October opinions.
The Board accepts the Solicitor General’s advice in the October opinions. The Board does not accept the Solicitor General’s advice given to the Public Guardian since 30 January 2009.

Failure to acknowledge that some persons with a mental illness will fall within the jurisdiction of the GAA but not the MHA:

As noted above, a ‘disability’ is defined in the GAA as follows:
"disability" means any restriction or lack (resulting from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function) of ability to perform an activity in a normal manner;
Therefore a person with a mental illness (in the ordinary sense of that term) is a person with a disability for the purposes of section 20(1)(a) of the GAA.
In the MHA, mental illness is particularly narrowly defined. The MHA states:
“4. Meaning of “mental illness”
(1) A mental illness is a mental condition resulting in –
(a) serious distortion of perception or thought; or
(b) serious impairment or disturbance of the capacity for rational thought; or
(c) serious mood disorder; or
(d) involuntary behaviour or serious impairment of the capacity to control behaviour.
(2) A diagnosis of mental illness may not be based solely on –
(a) antisocial behaviour; or
(b) intellectual or behavioural nonconformity; or
(c) intellectual disability; or
(d) intoxication by reason of alcohol or a drug.” (emphasis added)

Therefore whereas the GAA relates to an extremely broad category of conditions, the MHA relates to only one kind of condition and places qualification upon the seriousness of that condition. Many people with a mental illness may be incapacitated with regard to making decisions in their best interests, but not meet the definition in section 4 of the MHA. This might be because their condition is not sufficiently serious, or as in the case of EKR, because of the interaction of the mental illness with another disability such as an intellectual disability.

In considering that the MHA has codified the law relating to custody of people with mental illnesses, the Solicitor General’s advice has the effect, if correct, of leaving persons who are incapable by reason of a mental illness, but not sufficiently distorted, impaired or disturbed as to meet the MHA definition of mental illness, without a facility for the exercise of custody even if they lack the capacity to give an informed refusal or consent to hospitalisation.
The proposition of the Solicitor General begs the question: How might a person, incapacitated by reason of a mental illness, be hospitalised in an ‘approved hospital’ for the treatment of a physical illness or injury?

It is also possible that a person has a mental illness within the meaning of section 4 of the MHA but does not fit the criteria for an initial order, a continuing care order or a community treatment order, particularly where there is an absence of a ‘significant risk of harm’ in the person’s presentation. For these persons, presumably there can be no conflict between the MHA and guardianship provisions, because the MHA is of no effect.

Failure to take account of the effect of the objects in section 6 MHA:

The Board rejects any suggestion that the legislation intended the provision of initial orders, continuing care orders and community treatment orders might represent the entire legislative framework about hospitalisation for people with mental illness. Each of the MHA orders only arises where the person with a mental illness presents a significant risk of harm to himself, herself or others and detention is necessary for the protection of that person or others and relates only to the treatment of a mental illness. The provisions in the Act are, therefore, triggered by an acute and severe level of disability. To suggest that the provisions in the Act cover the field with regard to legislative protections for people with mental illness, and therefore people with a lesser degree of disability are not provided with the protection of a guardian, ignores the following objects of the MHA:
“6. Objects of Act
The objects of this Act are –
to provide for the care and treatment of persons with mental illnesses in accordance with the best possible standards while at the same time safeguarding and maintaining their civil rights and identity; and
…
(f) to promote recognition in the community of the right of persons with mental illnesses to the best possible standards of care and treatment; and
(g) to ensure that all practicable measures are taken to prevent mental illness or to arrest or impede its progress at an early stage; and
(h) to reduce the adverse effects of mental illness on family life; and
…
(j) to encourage the care and treatment of persons with mental illnesses in the community and to design and coordinate an integrated system of community support services for persons with mental illnesses who are being cared for in the community; and
(k) to ensure that, in relation to patients, all appropriate measures are taken to protect the safety of the patients and other persons.” (emphasis added)
The level of disability a person must have to trigger initial orders, continuing care orders and community treatment orders (i.e. where the person is at a significant risk of harm) do not generally arise at an early stage of a person’s illness. A person may become incapable of making reasonable judgments at an earlier stage of a mental illness and substitute judgments in their best interests may be required at an earlier stage than the stage at which a person is presenting a risk or has reached a serious level of distortion, impairment or disorder for the purposes of section 4 MHA. If the GAA provisions were eliminated with respect to persons with mental illnesses by the enactment of the MHA, the objects particularly objects 6(g) and 6(j) would be seriously undermined.

It is interesting to note that Parliament did contemplate the relationship between these two Acts. Second reading speeches in both the House of Assembly and the Legislative Council for the Guardianship and Administration Bill include this statement:
“The legislation before the House is landmark legislation and continues the Government’s program of legislative reform. The bill signals a change in direction in the Government’s thinking about the manner in which services should be provided to the mentally ill and to intellectually disabled members of our community.” (emphasis added)
In introducing the Mental Health Bill, The Hon. Mr. Cleary, Member for Franklin, Minister for Transport on behalf of the Minister for Community and Health Services, said in his second reading speech:
“Relationship with the Guardianship and Administration Act 1995: The current bill deals with the safeguards and processes around involuntary hospitalisation about monitoring and review and within a context the modern approach to mental health care generally; about the periods during which a person with mental illness is acutely and severely ill, and these periods in fact can be relatively short and relatively infrequent. As well, the great majority of people with mental illness never require compulsory hospitalisation. Within that great majority, however, there are some people whose mental illness produces substantial disability and impairs the capacity to make reasonable decisions. Whether the mental illness has been prolonged, such as chronic schizophrenia or of late, onsets such as Alzheimer's disease, the disability ingredient has much more in common with general disability than with acute mental illness. The Guardianship and Administration Act 1995 provides for modern protective mechanisms for people whose disability impairs capacity and needs to be regarded along with the current bill as part of the spectrum of mechanisms which ensure protection against exploitation and loss of rights while affirming the best interests of the persons concerned and the obligation to provide care in the least restrictive way possible.”
While the Board considers that the custodial powers of a guardian are obvious from the face of the legislation, these extracts from Hansard confirm to us that Parliament’s intention was for the two Acts to work in tandem and not for one to cancel out powers established in the other.

Conclusion:

The GAA establishes a comprehensive custodial power for guardians. That power is balanced by a range of protections including the supervision of the guardian by the Board and the facility for review of the guardian’s appointment. The custodial power of a guardian extends to the ability to decide that a represented person will live in a hospital. The status of a hospital as an ‘approved hospital’ under the MHA has no impact upon the ability of a guardian to act upon his or her custodial duties in the best interests of the represented person. The MHA is a discrete scheme to regulate the management of psychiatric care facilities and the very limited custodial powers of medical practitioner over patients with mental illnesses. Its impact upon the custodial powers of a guardian is limited to that which is discussed in paragraph 35 above.

The Board is satisfied that a decision of a guardian can be of legal effect even where the represented person is in an ‘approved hospital’ within the meaning of the MHA. The Board is also satisfied that a decision of a guardian with respect to accommodation (including the hospitalisation) of a person with a mental illness can have legal effect (subject to limitations expressed in paragraph 35), regardless of whether that person may also qualify for the range of protections available under the MHA.

EKR has demonstrated that she is, by reason of her disability, incapable of making reasonable accommodation decisions. She is presently living at Millbrook Rise, but lacks the capacity to give valid consent to that accommodation and variously refuses or objects to that accommodation. Senior psychiatrists are in disagreement about whether she meets the tests in the MHA and she is not currently subject to any order. Therefore EKR is in need of a guardian to make decisions about where she should live.

The Board has determined that EKR’s needs cannot be met by an alternative that is less restrictive of her freedom of decision and action. While Mental Health Services, as managers of Millbrook Rise, may be entitled to rely upon a defence of necessity regarding EKR’s accommodation therein, this defence does not give EKR any protections such as the external scrutiny and monitoring that the provision of a guardian can undertake in the best interests of the person. EKR appears to be a person without family or friends to take up and advocacy role and ensure that her rights are protected and her needs are met. In short, reliance upon a defence of necessity provides Mental Health Services with protection, but not EKR and the responsibility of the Board is to promote EKR’s best interests. The appointment of a guardian ensures that she has an advocate who will motivate others towards her best interests, her participation in the life of the community and hopefully, her independent living.
For the reasons given above, the Board is satisfied that appointing a guardian for EKR meets the tests set out in subsections 20(2) and (3) of the GAA.

Pursuant to subsections 20(4) and (5), the Board is satisfied that a limited order will be sufficient to meet EKR’s needs. The order can be limited to decisions described in section 25(2)(a) and (e) GAA.

No guardian other than the Public Guardian has been nominated for appointment. The Board is satisfied that the Public Guardian is eligible for appointment under section 21 of the GAA. By letter dated 18 February 2009 the Acting Public Guardian indicated her consent to appointment for the purposes of section 21(1) of the GAA, subject to the effect of the Solicitor General’s advice.
With respect to the ability of the Public Guardian to fulfil the requirements of guardianship in light of the Solicitor General’s advice, the Board is satisfied that the provisions in section 15(6) of the GAA eliminate any obligations arising from the Financial Management and Audit Act 1990 and note that the office of the Public Guardian a statutory agency that is independent of the Department of Justice. To that end, the Board will, of its own motion, direct the guardian with respect to accommodation decisions pursuant to section 31(4) of the GAA.

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 judgments 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 guardian of the represented person.
That the powers and duties of the guardian are limited to decisions concerning where the represented person shall live and consent to any health care that is in the best interests of the represented person and to refuse or withdraw consent to any such treatment.
That this order remains in effect until 18 February 2012.

THE BOARD HEREBY DIRECTS:
The guardian to decide that the represented person will live at Millbrook Rise and to give consent to Mental Health Services for that accommodation unless and until the guardian determines that alternative accommodation will meet the best interests of the represented person.

Anita Smith Paul Mayne Catherine Wilding
PRESIDENT EMBER MEMBER

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EKR (Guardianship) [2009] TASGAB 2

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TI (Guardianship) [2012] TASGAB 35

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TI (Guardianship) [2012] TASGAB 35

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