HI (No2) (Guardianship) - [2010] TASGAB 3

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: HI (No2) (Guardianship) [2010] TASGAB 3
Case: [2010] TASGAB 3
Decision Date: 4 March 2010

CaseChat Overview and Summary

The Guardianship and Administration Board of Tasmania was asked to consider an application for the appointment of a guardian for H.I., a 45 year old man with an intellectual disability who resides at the Wilfred Lopes Centre (the Secure Mental Health Unit) under a restriction order imposed in 2003. The Board was asked to appoint a guardian to make health care decisions on his behalf, particularly in relation to a recommendation by a Consultant Forensic Psychiatrist to treat him with anti-androgens to manage his sexual interests in prepubescent females. The application was brought by Dr Rosemary Schneider, a Consultant Psychiatrist in the Wilfred Lopes Centre.

The Board was required to decide whether H.I. met the criteria for the appointment of a guardian under section 20 of the Guardianship and Administration Act 1995. It had to consider whether H.I. had a disability and was unable to make reasonable judgments in respect of all or any matters relating to his person or circumstances and was in need of a guardian. The Board also had to consider whether the proposed guardian was suitable and whether the appointment of a guardian was in H.I.'s best interests.

The Board was satisfied that H.I. met the criteria for the appointment of a guardian. It found that H.I. has an intellectual disability and is unable to make reasonable judgments about his health care and medical treatment. The Board concluded that H.I. was in need of a guardian to make health care decisions on his behalf, particularly in relation to the proposed treatment with anti-androgens. It found that the Public Guardian was the appropriate person to be appointed as H.I.'s guardian, as she had acted successfully as his guardian on a previous limited order.

The Board also considered the issues raised about the limited attendance at the hearing and the failure to include certain persons as 'interested parties' in the application and hearing. It found that only those persons who were given notice had any legitimate expectation of participation in the hearing. It considered that the term 'interested party' was more limited than the scope of any person who may be curious or may have an opinion about the possible outcomes of a proceeding.

The Board ordered that the Public Guardian be appointed as H.I.'s guardian and 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. The Board also empowered the Public Guardian 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. The order remains in effect to 3 March 2013.

Orders