GC – Application for appointment of a guardian by Mental Health Services
[2014] TASGAB 23
•19 December 2014
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
GC – Application for appointment of a guardian by Mental Health Services
REASONS FOR DECISION
Anita Smith (President)
Date of hearing: 19 December 2014
Guardianship – whether a person is ‘in need of a guardian’ – operation of Part 6 of the Guardianship and Administration Act where an incapable patient is not objecting to treatment and has no person responsible – a directive allegedly issued by the Mental Health Tribunal did not fully take into account the legislative scheme in Part 6
Guardianship and Administration Act 1995 – s. 4, 11, 20, 25, 41, 43, 44, 69
Guardianship an Administration Regulations 2007 – reg. 7
BN (Advice and Direction) [2014] TASGAB 16
GC is a 58 year old man who lives [in] a facility operated by Mental Health Services. Mental Health Services (‘the applicant’) applied for appointment of a guardian because Mr. C requires medical treatment for diabetes and related incontinence issues and the applicant believes that substitute consent from a guardian is required to treat Mr. C for those conditions.
The making of a guardianship order is determined by the requirements in section 20 of the Guardianship and Administration Act 1995 (‘the Act’):
“20. Guardianship order
(1) If the Board, after a hearing, is satisfied that the person in respect of whom an application for an order appointing a guardian or an order appointing an administrator is made–
(a) is a person with a disability; and
(b) is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to his or her person or circumstances; and
(c) is in need of a guardian–
the Board may make an order appointing a full or limited guardian in respect of that person and any such order may be subject to such conditions or restrictions as the Board considers necessary.
(2) In determining whether or not a person is in need of a guardian, the Board must consider whether the needs of the proposed represented person could be met by other means less restrictive of that person's freedom of decision and action.
(3) The Board must not make an order under subsection (1) unless it is satisfied that the order would be in the best interests of the proposed represented person.
(4) ... (5) ... (6) ...”
Subsections 20(2) and (3) repeat two of the three the underlying principles of the Act, being:
“6. Principles to be observed
A function or power conferred, or duty imposed, by this Act is to be performed so that –
(a) 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
(b) the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and
(c) the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect.”
Hence the appointment of a guardian is considered to be a restrictive approach to a person’s freedom of decision and action and the Board should only embark on that course as a last resort where there is no other means to meet the best interests of a person with a disability.
How the application for guardianship arose:
On 14 February 2014, the applicant made an application for guardianship for Mr. C. This application related primarily to his accommodation issues. As his accommodation issues appeared to have been resolved shortly before the hearing of that application on 8 May 2014, the application was adjourned sine die without an order.
On 4 November 2013, the applicant made an application for appointment of an administrator due to concerns that Mr. C was experiencing financial abuse. On 5 December 2014, having received a notice of hearing for 19 December 2014, the applicant requested that the Board also consider appointment of a guardian. This was permissible under the Act in two ways: First, section 20 permits the appointment of a guardian for a:
“person in respect of whom an application for an order appointing a guardian or an order appointing an administrator is made” (emphasis added).
Second, it was permissible to restore and relist the application for guardianship that had been adjourned sine die.
The standard notice of hearing which was issued in this matter on 5 December 2014, in accordance with section 69(2) of the Act, states in part:
“What orders might the Board make?
After the hearing, the Board may make an order appointing a guardian or an administrator. The Board may also dismiss the application without making any order, or adjourn the application for further evidence to be given at a later date. Orders may be limited to very specific decisions. The Board may give directions to an administrator or guardian to take certain actions.
If a guardian is appointed for a person, that guardian may make personal decisions on his or her behalf, such as where he or she lives, what medical care he or she receives or who may, or may not, visit him or her.
If an administrator is appointed for a person, that administrator may make financial decisions and transactions on his or her behalf, such as re-directing his or her income, paying accounts, selling or buying assets and negotiating contracts.” (emphasis added)
Noting the Board’s ability to:
“act according to equity and good conscience without regard to technicalities or legal forms”
and that the Board is
“not required to conduct its proceedings in a formal manner,” (Section 11(2))
I am satisfied that it is appropriate to proceed to consider the guardianship application, even though the administration application was withdrawn at the hearing, proceeding on either of these two applications before the Board. I am also satisfied that contents of the notice of hearing sufficiently meet the Boards duty to apply the rules of natural justice with regard to Mr. C’s interests.
Disability and incapacity:
It is uncontested in this application that, by reason of his chronic schizophrenia, Mr. C is a person with a disability and is unable by reason of his disability to make reasonable judgements in respect of matters relating to his person or circumstances. In particular he is unable to understand the nature and effect of medical treatment. The Board accepted an opinion provided by Dr. Lang which satisfied these criteria.
Is Mr. C in need of a guardian?
The contested issue in this application is whether or not Mr. C is in need of a guardian. The alleged need for a guardian, as set out by the applicant, related solely to the treatment of Mr. C’s incontinence and his diabetes, which are conditions related to each other but not related to his mental illness. Apparently the treating team within Mental Health Services is acting on a directive given by the Mental Health Tribunal (at a hearing with respect to Mr. C) that Mr. C should have a guardian appointed for his general medical (non-psychiatric) treatment. The Mental Health Tribunal was not invited to comment on that alleged directive and the Board allows for the possibility that communications by that Tribunal may have been misinterpreted.
Medical treatment of a person who is:
·“incapable of understanding the general nature and effect of the proposed treatment” or
·“incapable of indicating whether or not he or she consents or does not consent to the carrying out of the treatment”
is governed by Part 6 of the Act. The intent of Part 6 was:
“… regularizing the law with regard to the consent to medical treatment of all persons who do not have the capacity to give such consent” (Second reading speech, Minister Cornish, Hansard 6 April 1995).
The scheme in Part 6 of the Act establishes four methods for obtaining substitute consent or alternatively deeming treatment to be lawful in the absence of consent. Two methods provide for the giving of substitute consent:
a) Except for ‘special treatments,’ lawful substitute consent may be given by a ‘person responsible’ (often referred to in ordinary parlance as the “next of kin”) – section 43 and section 4, and
b) Substitute consent may be given by the Board, including consent to ‘special treatments’ – section 45.
Two methods deem treatment to be lawful in certain circumstances where consent cannot be obtained:
c) No consent is required in specified circumstances of urgency - section 40, and
d) It is lawful to carry out treatment with no consent on a person who has no person responsible and who is not objecting to treatment, where the treatment is necessary and will most successfully promote the person’s health and wellbeing, excluding ‘special treatments’ and treatments set out in Regulation 7 of the Guardianship an Administration Regulations 2007 – Section 41 and Regulation 7
The operation of Part 6 has been limited since the commencement of the Mental Health Act 2013 with respect to the treatment of mental illnesses, now provided for under that Act. However, substitute consent to treatment of a mentally ill person for medical conditions unrelated to his or her mental illness remains within the operation of Part 6 of the Guardianship an Administration Act 1995.
If, as asked by the applicant, a limited guardian is appointed for Mr. C presumably with powers pursuant to section 25(2)(e), that guardian will become his ‘person responsible’ and can give substitute consent to medical treatment (For further discussion, see: BN (Advice and Direction) [2014] TASGAB 16). The question arises, however, whether such an appointment is necessary and whether it would represent the alternative that is least restrictive of Mr. C’s freedom of decision and action.
At the first hearing of a guardianship application on 8 May 2014, the Board discussed with parties present that Mr. C’s sister, SN, was most likely his person responsible for the purposes of sections 4 and 43 of the Act and that, in the absence of a guardian, she could give valid substitute consent to medical treatment for Mr. C. The Board’s investigator reported at the current hearing that Ms. N has since experienced personal issues which cause her to be unable to act in that role. If she is able to act in that role at some point in the future, it would be less restrictive of Mr. C’s freedom of decision and action to seek her consent as person responsible as required from time to time than to appoint a guardian. However currently, Mr. C does not have a person responsible.
The applicant’s evidence is that Mr. C does not have a history of objecting to treatment for his diabetes or his incontinence and is not currently objecting to such treatment. Additionally, the treatment of those conditions is necessary and the treatment that has been offered will most successfully promote his health and wellbeing. The treatments are not ‘special treatments’ nor treatments set out in Regulation 7. If Ms. N is unable to act as Mr. C’s person responsible, his circumstances will meet the criteria for section 41 of the Act which states:
“41. Medical or dental treatment without consent
(1) Where –
(a) it is proposed to carry out any medical or dental treatment which is not special treatment on a person to whom this Part applies; and
(b) there is no person responsible for that person; and
(c) the treatment is necessary and is the form of treatment that will most successfully promote that person's health and well-being; and
(d) that person does not object to the carrying out of the treatment –
it is lawful, subject to subsection (2), for the medical or dental treatment to be carried out on that person without consent under this Division.
(2) The regulations may provide that in such cases as are specified in the regulations medical or dental treatment may not be carried out on a person to whom this Part applies without consent under this Division.
(3) A medical practitioner or dentist who carries out or supervises any medical or dental treatment under subsection (1) without the consent of the relevant person must certify in the clinical records relating to the treatment that –
(a) the treatment is necessary and is the form of treatment that will most successfully promote that person's health and wellbeing; and
(b) the person does not object to the carrying out of the treatment.”
So long as the medical practitioners are complying with the requirements of section 41, treatment can proceed in the absence of Mr. C’s informed consent or the consent of a ‘person responsible’ and his best interests are served. If Mr. C should unpredictably object to treatment of his medical conditions at any point, the treating team could apply for the emergency appointment of a guardian pursuant to section 65 of the Act. Any of these options is less restrictive of Mr. C’s freedom of decision and action than the appointment of an ongoing guardian at this time. Accordingly, Mr. C is not in need of a guardian to consent to medical treatment. The application is dismissed.
If the Mental Health Tribunal has issued the directive attributed to it, the Tribunal may have been unaware of the full extent and operation of Part 6 of the Act. The Board was informed that, as a result of the directive, that up to four further applications similar to this one are being prepared for submission to the Board. It is likely that such applications (if they present similar factual circumstances) will be rejected pursuant to section 11(13) of the Act as lacking in substance as there is no legal foundation for appointing a guardian in these circumstances.
Anita Smith
PRESIDENT
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