HDI (Emergency Guardianship)
[2013] TASGAB 22
•10 October 2013
GUARDIANSHIP AN ADMINISTRATION BOARD
HOBART
HDI – Emergency application for the appointment of a guardian by the Royal Hobart Hospital
HDI (Emergency Guardianship) [2013] TASGAB 22
REASONS FOR DECISION
Anita Smith (President)
Date of decision: 10 October 2013
Guardianship – reasons of urgency – serious risks to life and health – person with schizophrenia experiencing persecutory delusions and hallucinations, refusing food and water - a guardian with power to make health care decisions could consent to treatment to save the person’s life or prevent damage to his health
Guardianship and Administration Act 1995 s.20, 65
HDI is a 26 year old man. At the time of the application he was subject to an order under the Mental Health Act 1996. The Royal Hobart Hospital applied for the appointment of a guardian pursuant to emergency provisions in section 65 of the Guardianship and Administration Act 1995. Relevant provisions of section 65 of the Act provide:
“(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 … make an order appointing – (a) the Public Guardian as his or her guardian: … – and … 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; …
(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.”
Reasons of urgency:
The Act does not provide criteria for what constitute ‘reasons of urgency’. However, the Board’s policy states:
“Emergency guardianship orders are available when the need for a guardian is too urgent to wait for notice periods to be served and a full hearing. Generally, a hearing will be convened while the emergency order is in place to consider a proper application.
… Generally, the kinds of issues that establish urgency are that a person is likely to suffer damage to his or her physical, emotional or mental health or well-being, or at risk of homelessness, significant hardship or irreversible financial loss, unless preventive action is taken or that an activity is occurring with respect to the person that is unlawful unless it is sanctioned by a guardian.”
The applicant stated that the reasons for urgency were as follows:
· HDI had been in hospital for almost 12 weeks and his illness had been exacerbated despite reinstatement of antipsychotic medication
· HDI has a chronic toe infection (secondary to an ingrown toenail) for which he was refusing treatment
· He had been refusing to eat or drink for three days, putting him at risk of physical deterioration and death
· Prior to refusing all nutrition and hydration, his oral intake had been minimal, causing a decrease in his blood pressure to dangerous levels
· He had assaulted a staff member in the context of acute psychosis and was therefore presenting a risk to himself (due to the implementation of a code black by PICU staff) and others
In the time it would take to receive a full guardianship application, serve 10 days’ notice of the hearing and convene the hearing, if these assertions are correct, it is very possible that HDI would suffer serious damage to his physical and mental health and wellbeing, if not death. In the Board’s view, these factors established reasons of urgency.
Are there grounds for making a guardianship order?
Section 20 of the Act sets out the grounds for making a guardianship order are that the person:
(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 following medical opinions accompanied the application:
Dr. Rebecca Graham on behalf of Dr. Jim Blacket 10 October 2013
Dr. Matt Fasnacht 6 October 2013
Dr. Rugare Nyakunu 8 October 2013
Dr. Rebecca Graham 22 August 2013
The Board also has on file the following historical reports from previous applications with respect to HDI:
Dr. Mohammad Khan 8 November 2012
Dr. Andy Chua 22 July 2011
These reports are consistent in stating that HDI has schizophrenia. The reports constitute significant grounds upon which the Board can reach the conclusion that HDI is a person with a disability. Such a conclusion could be challenged at a hearing if alternative evidence was presented or if the opinions were tested. However, without the benefit of a hearing, the Board accepts this information on a prima facie basis.
The application noted that HDI was experiencing persecutory delusions and hallucinations. As a result of these he was refusing oral intake and medications. These are significant grounds upon which the Board can reach the conclusion that HDI is unable by reason of his disability to make reasonable judgements in respect decisions about medical treatment, hydration and nutrition. Such a conclusion could be challenged at a hearing if alternative evidence was presented or if the opinions were tested. However, without the benefit of a hearing, the Board accepts this information on a prima facie basis.
The application indicated that the reason HDI was in need of a guardian was that he was in need of Electro-convulsive Therapy (ECT) but would not give consent to that treatment. Without such treatment, the applicant believed that the risk to HDI’s life would persist and his psychosis would be exacerbated. HDI was mute other than to inform the treating team that he was refusing to speak. The Board accepts this information on a prima facie basis.
In such circumstances, consent can be given by a ‘person responsible’ as defined in the Act. The Board was informed that no ‘person responsible’ was available and willing to give that consent on behalf of HDI. If presented with an alternative application, the Board could give direct consent pursuant to Part 6 of the Act, however the applicant sought the appointment of a guardian. A guardian will weigh up the factors in section 43 and determine whether such treatment is in HDI’s best interests. The powers given to a guardian under a guardianship order include ‘health care’ which empowers the guardian to refuse treatment, or could extend to the guardian giving consent to alternative treatments, nutrition and hydration if required. Given the circumstances described, the Board considered there were sufficient grounds to conclude that HDI was in need of a guardian to determine whether he should have treatment and, if so, what treatment is appropriate.
Taking into account the above information, particularly the serious risks to HDI’s life and health, the Board was satisfied that this is an appropriate situation in which to appoint the Public Guardian as guardian limited to making decisions about his health care.
Conclusion:
The Board being satisfied that there are reasons for urgency and grounds for making a guardianship order in respect of HDI (hereinafter called the ‘represented person’)
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 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 for 28 days from this date.
FURTHER THE BOARD DIRECTS:
That on or before the expiry of 25 days duration of this order the Public Guardian shall report to the Board in accordance with the approved form for emergency order reports.
If a further order is required the Public Guardian is hereby directed to take all reasonable steps to ensure that an application for guardianship and a Health Care Professional Report are completed by the applicant before the expiry of the emergency order.
Anita Smith
PRESIDENT
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