HI (No2) (Guardianship)
[2010] TASGAB 3
•4 March 2010
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
Mr H.I. an application for appointment of a guardian by MENTAL HEALTH SERVICES
Neutral Citation: HI (No2) (Guardianship) [2010] TASGAB 3
REASONS FOR DECISION
Anita Smith (President)
Guardianship – consent to medical treatment – forensic patient, proposal to treat with anti-androgens – appointment of a guardian to make health care decisions – meaning of ‘interested party’ to a guardianship application – right of an advocate to be a representative
Guardianship and Administration Act 1995 (Tas), ss 6, 20, 21, 25, 67, 73(1)
Criminal Justice (Mental Impairment) Act 1999 ss 18(2), 37(3)
Mental Health Act 1996 s 72I
Kioa v. West [1985] HCA 81; (1985) 159 CLR 550, HDH (No2) (Costs) [2005] TASGAB 6
H.I. is a 45 year old man who resides at the Wilfred Lopes Centre (the Secure Mental Health Unit) pursuant to a restriction order. This order was imposed in 2003 pursuant to section 18(2) of the Criminal Justice (Mental Impairment) Act 1999 because he had been found unfit to stand trial.
Dr Rosemary Schneider, a Consultant Psychiatrist in the Wilfred Lopes Centre, made an application for the appointment of a guardian for H.I. on 25 January 2010. The application seeks the appointment of the Public Guardian as H.I.’s guardian pursuant to section 20 of the Guardianship and Administration Act 1995 specifically to be able to consent to medical treatment on his behalf.
Background to the application:
The index offence to H.I.’s restriction order was the abduction, rape and indecent assault of a 6-year-old girl who had been known to him. He had two prior convictions for sex offences against children.
The Forensic Tribunal issued a certificate in November 2008 pursuant to section 37(3) of the Criminal Justice (Mental Impairment) Act 1999 which allows H.I. to apply to the Supreme Court for discharge of the restriction order. Dr Schneider and others are working towards preparing H.I. for possible release (depending upon the decision of the Court) from the Wilfred Lopes Centre and this application was part of that process.
Dr Schneider’s application arose because, during the preparation for possible release, she has sought and received a report from a Consultant Forensic Psychiatrist, Dr Danny Sullivan, which concludes that:
“[H.I.] would appear to maintain sexual arousal to prepubescent females and thus would be diagnosed with heterosexual paedophilia, non-exclusive type” and
“I strongly recommend anti-libidinal medication for H.I.. In situations where a person is incapable or unwilling to employ strategies to reduce their own risk of sexual offending, treatment with anti-androgens significantly reduces offending risk and is likely to reduce impulsive sexual offending.”
Dr Sullivan also recommended:
“Obviously there remains risk of adverse side effects and for that reason the appointment of a Guardian I think provides a safeguard for H.I..”
For a person on a restriction order, substitute consent for medical treatment may be obtained either from the sources available under Part 6 of the Guardianship and Administration Act 1995, or from a guardian appointed pursuant to Part 4 of that Act or from the Forensic Tribunal pursuant to section 72I of the Mental Health Act 1996. The applicant consulted the Board before making an application as to which was the most appropriate course and was advised of this range of options. Ultimately she decided to follow Dr Sullivan’s advice stating:
“I think a guardian would be a better option than consent to specific treatment since there are alternative medication regimes available, and also a possible need for management of adverse side effects.”
Section 20 of the Guardianship and Administration Act 1995 (‘the Act’) states:
“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.”
Section 25 of the Act provides that a guardian may, amongst other things, 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. In assessing the application, the Board must also accord due weight to the principles of the Act set out in section 6.
Formal requirements of the application:
The application was accompanied by a Health Care Professional Report completed by Dr Schneider. The applicant also supplied a copy of a report by Dr Danny Sullivan dated 13 January 2010 and copies of documents that relate to a behaviour management program “My Offending Cycle” (part of the “Old Me, New Me” program) in which H.I. has participated.
The applicant did not complete the parts of the application regarding H.I.’s primary carer noting “H.I. has no other carers except staff in Wilfred Lopes Centre” and the section headed “other interested parties” again noting “None known since death of mother”. Accordingly notice was sent only to H.I., the applicant and the Public Guardian. (At the conclusion of this statement of reasons, the Board will address why the applicant was technically correct in answering these questions, although the question was not raised until after the application had been decided and these issues were not a part of the Board’s decision making process in relation to the application.)
H.I. was sent notice of the hearing on 11 February 2010, meaning he had greater than the 10 days notice to which he is entitled under section 69 of the Act. The notice of hearing informs the recipient of his or her right to legal representation or representation by a non-legal advocate and gives contact information for the Legal Aid Commission of Tasmania.
The hearing was convened on 4 March 2010. The following persons attended:
H.I. – Proposed Represented Person
Dr Rosemary Schneider – Applicant
Margaret Colville – Deputy Public Guardian
Shelly – Registered nurse at the Wilfred Lopes Centre
Rowan – Registered nurse at the Wilfred Lopes Centre (observer)
Valerie Hannon – Investigation Officer, GAB
Is H.I. a person with a disability? – Section 20(1)(a)
The applicant, in completing the Health Care Professional Report, stated that H.I. is a person with an intellectual disability that this is a lifelong condition and his IQ is estimated to be around 50. Dr Sullivan’s report concludes that he has a mild-moderate intellectual disability and refers to a 1995 report by a Clinical and Forensic Psychologist which had assesses his full scale IQ at 50, his verbal IQ at 53 and performance IQ at 56. H.I., who was quite vocal in opposition to some matters at the hearing, did not dispute a diagnosis of intellectual disability.
The Board was satisfied on the basis of Dr Schneider’s evidence and its own observations of H.I. at the hearing that H.I. has an intellectual disability.
Is H.I., by reason of that disability incapable of making reasonable judgments about his person and circumstances? – Section 20(1)(b)
The applicant, in completing the Health Care Professional Report, stated that H.I. experiences deficits in expressive communication, receptive communication, impulse control, capacity for new learning and his planning and reasoning skills by reason of his disability. She stated that he relies on old, well learned skills and is unable to plan for realities of his own circumstances.
Dr Sullivan described H.I.’s capacity as follows:
“Cognitively he appeared to be moderately intellectually disabled. However I understand that his adaptive functioning is somewhat higher than his apparent intellectual abilities.”
H.I. again did not dispute that he had difficulty understanding difficult concepts. When asked different questions in different ways, H.I. responded with a simple objection to the treatment and stated repeatedly that he would not have medical treatment and could not be forced to do so. Shelly, a nurse at the Wilfred Lopes Centre confirmed that H.I. objects to all treatment. H.I. agreed with her.
The Board attempted to engage H.I. in discussion about the anticipated link between having the treatment and possible release from the Wilfred Lopes Centre, but he could not appreciate any link between the two issues. H.I.’s strategies for remaining out of trouble once he leaves the Centre will be to abstain from alcohol and to keep to himself. He did not demonstrate any understanding of the use of medication to control behaviour or hormonal manipulation. For instance when Dr Schneider described some of the unpleasant feminisation effects of the treatment, he gave no reaction at all. His objection to the treatment appeared to be associated with his general dislike of treatment rather than a specific understanding of the effects of this specific form of medication.
Given that treatment with anti-androgens has such complexities, such as balancing one’s bodily integrity and risks of unpleasant side-effects against the perceived therapeutic and personal benefits, it is clear that H.I. would have no ability whatsoever to weigh up these decisions. The Board was satisfied on the basis of the evidence from Dr Schneider, Dr Sullivan, Shelly and H.I. that he is incapable of making reasonable judgments about his health care and medical treatment.
Is H.I. in need of a guardian? – Section 20(1)(c)
The need for a guardian arises from the objective of members of the treating team to prepare H.I. for release from the Wilfred Lopes Centre. Dr Schneider stated in the application:
“H.I. has a persisting uncontrolled interest in any female he considers available. He has great difficulty in controlling this. It is likely to be more of a problem for his carers in a community setting and has lead to him being secluded a number of times in WLC. Planning is in progress for his eventual move to community living. H.I. has never been tried on treatment to reduce his libido and a new specialist opinion [Dr Sullivan’s] has now recommended this. H.I. has had extensive behavioural training programmes especially “Old Me, New Me” with very little success on the core issue. He is a bit better at taking direction after the event.”
In response to the question: “Explain why a guardian is needed to manage the person’s lifestyle decisions” She also stated: “For health care consent especially re anti-androgens, benefits and adverse effects need to be weighed up.”
The Board is clearly aware of the gravity of a possible decision to treat H.I. in accordance with Dr Sullivan’s recommendation. Dr Sullivan’s report is clearly set out and extensive, however it is possible that other practitioners may come to a different conclusion. Therefore, it is important that a competent person weighs up the benefits and risks of the recommended treatment to H.I. and makes that decision on his behalf and in light of the principles in section 6 of the Act. The application also does not specify a particular treatment and it is possible that there are different species of treatment which may also require assessment for their suitability. Section 43 of the Act sets out the decision making process that the guardian should adopt for decisions about medical treatment. If the guardian is not satisfied that the tests in section 43 are met by the proposed treatment, she should refuse it.
The Deputy Public Guardian informed the Board that she had been contacted by Lifestyle Solutions (an organisation who is preparing to accommodate H.I. if the application for discharge of the order is successful) who were seeking for the guardian to be appointed with broader powers than health care, including powers to call the Police if he should leave a facility or misbehave. The Board considered that these powers appeared to be based on contingencies that may not arise, depending upon whether the Court authorises discharge, whether there is a supervision order and the terms of such an order.
The Board is satisfied that H.I.’s need for a guardian is limited to health care decisions.
H.I.’s statements during the hearing showed clear antagonism to medical treatment of any type and an assertion that he could not be forced to have such treatment. The Board was satisfied that these statements stemmed from an underlying belief which he was prepared to defend. Therefore, should the guardian decide that the proposed treatment is in H.I.’s best interests it may be necessary to enforce that decision. Accordingly, the Board extended powers pursuant to section 28 to assist the guardian should her decisions need enforcement. The fact that treatment may need to be forced is another aspect that the guardian ought to consider when weighing up the risks and benefits of the proposed treatment.
The Board considered whether H.I.’s needs could be met by other means less restrictive of his freedom of decision and action for the purposes of section 20(2) of the Act and whether such an order is in his best interests for the purposes of section 20(3). Firstly, there is no relative who could act as H.I.’s ‘person responsible’, so that facility does not exist as a less restrictive alternative. Secondly, other behaviour management programs have been tried and shown to fail (H.I. said that he already “knew it all” and appeared unimpressed by any experiences in those programs). It is unlikely that H.I. will become capable of making these decisions himself. There are two competing interests for H.I.: one is a possibility that the proposed treatment might aid his discharge from the restriction order, the other is his concern for bodily integrity or his adamant refusal of treatment. There is no other way for these issues to be balanced and legally enforced other than through the considered and informed decision making process of a competent guardian.
The Board is satisfied that appointment of a guardian to decide these complex issues is consistent with the principles in section 6 of the Act.
The suitability of the proposed guardian – section 21
The Public Guardian was nominated in the application and no other nominations were received. The Public Guardian has acted with success as H.I.’s guardian on a previous limited order (10 June 2008 to 19 November 2009). The Board is satisfied that there is no other suitable person and that the Public Guardian is the appropriate guardian.
Post hearing note:
The issues discussed between paragraph 28 and 33 herein relate to matters that have been raised with the Board after the Board had made its decision. Accordingly the following matters played no part in the Board’s decision making process and are discussed here for the benefit of persons who have raised, since the decision was made, concerns about the limited attendance at the hearing (see paragraph 10 herein).
It would appear that the applicant has been criticised for omitting certain persons as ‘interested parties’ from the application and consequently hearing. The Board has strong reservations about whether any other persons were in fact entitled to notice of the hearing. The Board considered the meaning of “interested party” in HDH (No2) (Costs) [2005] TASGAB 6 where it said:
“The Act does not define who is a party to an application. However, some guidance is provided in sections 69(1) and 73 about the status of certain parties. The relevant parts of section 69(1) provide that notice must be given to the applicant, the person in respect of whom the hearing is to be held, the Public Guardian and “any other person who the Board is satisfied has a proper interest in the matter.”
Section 73(1) specifies that the applicant, the person in respect of whom the hearing is to be held and the Public Guardian are entitled to representation at the hearing. All other persons must seek the leave of the Board to be represented. The Board is of the view that it is appropriate to extrapolate from these legislative provisions that the legislature intended that the “parties” for the purposes of this kind of application are the applicant, the person in respect of whom the hearing is to be held and the Public Guardian.”
The leading case on the issue of who has a “proper interest” in a proceeding is Kioa v. West [1985] HCA 81; (1985) 159 CLR 550. It is clear from that decision, particularly paragraphs 21-27 per Brennan J, that the term ‘interested party’ is more limited than the scope of any person who may be curious or may have an opinion about the possible outcomes of a proceeding. In particular, his Honour stated:
“It is not the state of mind of an individual but the interest which an exercise of power is apt to affect that is relevant to the construction of the statute. A "legitimate expectation" cannot arise unless an exercise of the power is capable of affecting, for good or ill, the interests of the person who holds that expectation.”
It has been suggested following the decision of the Board that a lay Disability Advocate, an unnamed Disability Services Service Co-ordinator, unnamed persons from the organisations Life Without Barriers, Lifestyle Solutions and ‘other current and prospective service providers,’ were persons who ought to have been involved in the hearings. No evidence has been put to the Board why these persons had a proper interest in the matter or how the Board’s decision may have affected, for good or ill, the interests of those persons.
The Board considers that only those persons who were given notice had any legitimate expectation of participation in the hearing. Whether other persons might have given evidence that advanced the interests of H.I. is perhaps another matter. Other persons might have wished to express opinions about the recommendations for treatment, but those opinions are better expressed to the Public Guardian now that she has been charged with the making of health care decisions.
Leaving aside issues of how a person might obtain instructions from H.I., it may be an appeal point whether H.I. ought to have been afforded the representation of a lay advocate. It may be an issue for a review under section 67 whether the other persons may have additional cogent evidence which they could contribute to a hearing. However, it appears that the criticisms of the applicant have been based on a misunderstanding of the term ‘interested person’.
Conclusion:
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 be 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.
Pursuant to section 28(2) the Public Guardian is empowered to authorise any officer of Tasmanian Police or any employee, officer or agent of the Crown in the Department of Health and Human Services to take such measures to ensure that the represented person complies with any decision of the guardian, including but not limited to restraining the represented person in order to administer the medical treatment as consented to by the guardian.
That the order remains in effect to 3 March 2013.
Anita Smith
PRESIDENT
Statement of reasons requested: 11.3.10
Statement of reasons delivered: 17.3.10
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