FLI (Extended Emergency Guardianship)

[2018] TASGAB 29

GUARDIANSHIP AND ADMINSTRATION BOARD

FLI (Extended Emergency Guardianship) [2018] TASGAB 29

STATEMENT OF REASONS

Board: Rowena Holder

Date of order:   31 October 2018

Extension of Emergency Order -  meaning of word “renew” - request by Public Guardian to vary by adding additional power
Guardianship and Administration Act 1995 – Section 65

Background

1. On 3 October 2018, the Guardianship and Administration Board (the Board) made an Emergency Guardianship Order for FLI which was to expire on the 31^st October 2018.  The Board appointed the Public Guardian with powers and duties limited to;

   (i)    decisions concerning where the represented person is to live whether permanently or temporarily, and

   (ii)   providing consent to any reasonable measures required to convey the represented person to, and cause them to remain at the place of residence as determined by the guardian.

2. A request for a Statement of Reasons was made by FLI on the 12 October 2018.  A Statement of Reasons was published by the Board on the 30 October 2018. 

3. A brief template format Report to the Board dated 29 October 2018 from the Office of the Public Guardian, authored by Guardian Ms Valerie Hannon was received by the Board on the 29 October 2018. 

4. On the 31 October 2018 the Board renewed the Emergency Guardianship Order, for a further 28 days. The new Order will expire on 28 November 2018.

5. A request for Statement of Reasons has been made by the Public Guardian in relation to the emergency order extension.

Legislation

1. Section 65 of the Guardianship and Administration Act 1995 (the Act) gives the Board the power to make orders if urgent circumstances exist, providing the Board is satisfied there may be grounds for making a guardianship order. Section 65 states:

   (1) Where the Board considers it proper to do so by reason of urgency, the Board may in respect of a represented person make any order or give any direction considered appropriate in the circumstances.

   (2) Where the Board considers it proper to do so, by reason of urgency, the Board may, in respect of a person who is not a represented person but in respect of whom the Board considers that there may be grounds for making a guardianship order or an administration order make an order appointing –

   (a) the Public Guardian as his or her guardian; or

   (b) The Public Trustee as administrator of his or her estate –

   and in either case the Board may make any order or give any direction considered appropriate in the circumstances.

   (3) The Board may make an order under this section of its own motion or on request by any person whom the Board considers to have a proper interest in the matter.

   (4) In the exercise of its powers under this section –

   (a) the Board is not required to give notice to any person or to hold a hearing before making an order but the Board must make such inquiries or investigations as the Board may think appropriate; and

   (b) the Board may act on a request made, or information received, by telephone or any other means that the Board considers appropriate in the circumstances; and

   (c) …

   (4A) The powers and functions of the Board under this section may be exercised and performed by one or 3 members of the Board as may be determined in each case by the President.

   (5) An order under this section –

   (a) remains in effect for such period as the Board determines but not exceeding 28 days; and

   (b) may be renewed but only once for a further period not exceeding 28 days.

   (6) …

Factual circumstances

1. The Guardian’s Report to the Board dated 29^th October 2018, stated that FLI has moderate cognitive impairment which remains unchanged.  However her diagnosis of delirium has resolved.

2. The Guardian’s Report states:

   Need

   FLI remains at Roy Fagan Centre and as such, the ongoing consent of the guardian is required. Decisions will be required around discharge destination and supports in the community.  FLI requires support services to ensure her safest possible return home.  Her views around the need for support services oscillates from accepting to not accepting.  She appears to lack insight into her care needs.

   The Report indicates that there is a need for a guardian expected beyond the period of the second Emergency Order.

3. The original Application for an Emergency Guardianship Order stated that Dr Alison Cleary, Geriatrician had seen FLI and recommended her transfer of care to the Roy Fagan Centre.  The Roy Fagan Centre is a secure mental health facility. The original Application stated that FLI requires “ongoing assessment, rehabilitation and discharge planning.”

4. The Board is satisfied it is proper to renew the order, by reason of urgency.  The urgency is the need for ongoing detainment of FLI at the Roy Fagan Centre which is required for her ongoing assessment, rehabilitation and discharge planning.  FLI is a person incapable of giving informed consent to her admission and detainment at the Roy Fagan Centre and therefore a guardian can provide that substitute consent.  Accordingly, before the original Emergency Guardianship Order expired on 31 October 2018, the Emergency Guardianship Order was renewed for a further 28 days with the same powers.

5. The Board noted that the Guardian’s Report indicated that “FLI requires support services to ensure her safest possible return home.” The Board interpreted this comment as a request by the Guardian for a variation of the order to expand the powers of the limited Order.

6. Section 65(5) states an order can be renewed for a single further period of 28 days. It does not provide the power to vary the order by adding additional powers.

7. The word renew is not defined in the Act. The Board considered the plain English meaning.  The Macquarie Dictionary (2016) defines renew as

   1.  to begin or take up again, as acquaintance, conversation, etc.

   2.  to make effective for an additional period: to renew a lease.

   3.  to restore or replenish: to renew a stock of goods.

   4.  to make, say, or do again.

   5.  to revive; re-establish.

   6.  to recover (youth, strength, etc.).

   7.  to make new, or as if new, again; restore to a former state.

   –verb (i)

   8.  to begin again; recommence.

   9. to renew a lease, note, etc.

   Therefore applying the ordinary meaning of the word renew and adopting the wording of the Macquarie Dictionary, the legislation enables the Board to, ‘makes effective for an additional period’ the emergency guardianship order, that is for a further 28 days.

8. There is nothing in section 65 that expressly enables the Board to vary or amend the original emergency order and section 65(5)(b) does not contemplate more than a limited renewal power. It would be inconsistent with ordinary principles of statutory interpretation to attempt to read into this section a power to vary the original orders.

9. Further, the Board is not satisfied urgent circumstances exist in these circumstances.  FLI is safe and being cared for at the Roy Fagan Centre. She is not at risk of harm or neglect.  The support services that have been identified in the Guardian’s Report do not satisfy the urgency requirement.  If support services are required at the time of discharge from the Roy Fagan Centre then this can be addressed in an application for guardianship. An application for guardianship (under section 20) can be made where additional powers are identified as being needed by the guardian. This is the appropriate process where there is no urgency for the immediate safety and care of the represented person. It is a process that ensures procedural fairness to the represented person with regard to decisions effecting their life. Procedural fairness affords the represented person, the parties and other persons with a proper interest in the matter to receive notice of the hearing and to present relevant material to the Board in person or through evidence and, importantly for the represented person, the right to consider whether or not legal representation or advocacy is required.

10. The Board renewed the Emergency Guardianship Order as follows:

    1.    That the Public Guardian be appointed as guardian for the represented person.

    2.    That the powers and duties of the guardian are limited to;

    (i)decisions concerning where the represented person is to live whether permanently or temporarily, and

    (ii)providing consent to any reasonable measures required to convey the represented person to, and cause them to remain at the place of residence as determined by the guardian.

    The Orders remain in effect until the 28 day of November 2018.