In the Matter Of Michael (Guardianship and Management of Property)

[2020] ACAT 8

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

IN THE MATTER OF MICHAEL (Guardianship and Management of Property) [2020] ACAT 8

GT 172/2006

Catchwords: GUARDIANSHIP AND MANAGEMENT OF PROPERTY – application to remove a guardian’s power to give consent required for treatment under the Mental Health Act when a psychiatric treatment order is in place – whether such a power can be utilised or is an unnecessary restriction on a person’s freedom of choice and action when a psychiatric treatment order is in place – role of a guardian regarding treatment under the Mental Health Act – whether a guardian has a role when a psychiatric treatment order is in place – application dismissed

Legislation cited:     Guardianship and Management of Property Act 1991 ss 4, 7, 8, 11, 32B, 70A

Mental Health Act 2015 ss 6, 9, 10, 26, 27, 28, 54, 55, 56, 58, 59, 62, 64, 79, 188, 190, 194, 268, Dictionary

Cases cited:   In the Matter of AB [2017] ACAT 67

In the Matter of AB [2018] ACAT 18

In the Matter of BC [2018] ACAT 67

In the Matter of ED [2017] ACAT 84

In the Matter of FG [2018] ACAT 134

In the Matter of Jane [2019] ACAT 18

In the Matter of Renée [2019] ACAT 116

Tribunal:     Presidential Member G McCarthy

Date of Orders: 27 September 2019

Date of Reasons for Decision:  31 January 2020

AUSTRALIAN CAPITAL TERRITORY )

CIVIL & ADMINISTRATIVE TRIBUNAL        )          GT 172/2006

IN THE MATTER OF MICHAEL

TRIBUNAL: Presidential Member G McCarthy

DATE:         27 September 2019

ORDER

1. These Orders were reviewed, confirmed and continued as shown:

Appointment of Guardian

2. The Public Trustee and Guardian is appointed guardian for [the protected person] with the following powers:

(a)  to decide where, and with whom the protected person is to live;

(b)  to give any consent required for a medical procedure or other treatment (other than a prescribed medical procedure);

(c)  to give any consent required for the protected person to receive services under the National Disability Insurance Scheme;

(d)  to give any consent required for a medical treatment involving treatment, care or support under the Mental Health Act 2015 (other than a prescribed medical procedure);

(e)  to bring or continue legal proceedings for or in the name of the protected person;

(f)   to make other personal decisions needed to ensure the protected person's health and welfare needs are met and to protect him from unreasonable risks to his health and welfare;

(g)  to do things necessary to give effect to decisions about the matters set out above, including (but not limited to):

(i)    giving or receiving information; or

(ii)   giving consent to investigations and assessments; or

(iii)  participating in negotiations; or

(iv)  signing documents.

3. The Tribunal will review this appointment on its own initiative before 17 May 2022.

4. The guardian must notify the Tribunal of any changes to the address of, or of any other significant change in circumstances of, itself or of the protected person.

Appointment of Manager

5. The Public Trustee and Guardian is appointed as manager to manage all of the property including finances of [the protected person] with the following powers:

(i)  all the powers the protected person would have been entitled to exercise if he were legally competent to exercise powers in relation to his property including his finances himself.

6. The Tribunal will review this appointment on its own initiative before 17 May 2022.

7.           The manager must notify the Tribunal of any changes to the address of, or of any other significant change in the circumstances of, itself or of the protected person.

......................Signed....................

Presidential Member G McCarthy

REASONS FOR DECISION

1.           On 17 May 2019, the Tribunal appointed the Public Trustee and Guardian (the PTG) as guardian for a person who I will refer to in my reasons as Michael. The PTG’s powers, as guardian, include a power to give any consent required for treatment under the Mental Health Act 2015 (the MH Act). In August 2019, the PTG applied for this power to be removed on the grounds that Michael was the subject of a psychiatric treatment order (PTO) made under the MH Act.

2.           The PTG’s application raised important questions regarding the role of a guardian appointed under the Guardianship and Management of Property Act1991 (the GMP Act) where a protected person is receiving treatment, care and support for a mental illness under the MH Act. I should begin with a factual background.

Background

3.           Michael was born in 1969 and is now 50 years old. He has a long-standing diagnosis of paranoid schizophrenia. Treatment of his illness is complicated by his excessive alcohol consumption and cannabis use. Over the years, he has committed acts of violence when acting on his paranoid persecutory delusions. He has had multiple admissions to hospital for psychiatric treatment. He has not worked for more than 20 years.

4.           Michael has, however, had the good fortune to be well supported by his parents.

5.           Since April 2006, Michael has been the subject of many PTO’s made previously under the Mental Health (Treatment and Care) Act 1994 (repealed) and now under the MH Act. PTOs have often been made consecutively. However, there had been many months when Michael has been treated as a voluntary patient. This is a common situation for persons with schizophrenia.

6.           The consensus medical opinion is that Michael lacks any insight into his mental illness and his consequent need for treatment, care and support. Michael’s parents have provided him with considerable support over the years, but he states he does not wish for them to continue supporting him. The uncontroversial medical opinion is that without considerable support, Michael’s mental and physical health would deteriorate. He remains a risk of harm to others.

7. Section 58 of the MH Act provides for the making of a PTO. Sections 58(2)(a) – (g) state seven criteria that must be met in order for a PTO to be made. Relevant for present purposes, sections 58(2)(a), (b), (c) and (g) state:

The ACAT may make a psychiatric treatment order in relation to the person if —

(a)   the person has a mental illness; and

(b)   either —

(i)          the person does not have decision-making capacity to consent to the treatment, care or support and refuses to receive the treatment, care or support; [emphasis added] or

(ii)         the person has decision-making capacity to consent to the treatment, care or support, but refuses to consent;

(c)    the ACAT believes on reasonable grounds that, because of the mental illness, the person—

(i)      is doing, or is likely to do, serious harm to themself or someone else; or

(ii)     is suffering, or is likely to suffer, serious mental or physical deterioration; and

…

(g)   the ACAT is satisfied that the treatment, care or support to be provided under the psychiatric treatment order cannot be adequately provided in another way that would involve less restriction of the freedom of choice and movement of the person.

8. On 4 April 2019, the Tribunal made a PTO in relation to Michael. As required under section 59(2)(a) of the MH Act, the PTO states that Michael:

must comply with any determination made by the chief psychiatrist or delegate under section 62 of the Mental Health Act.

9. Pursuant to section 62(2)(c) of the MH Act, the Chief Psychiatrist may, among other things, determine “the nature of the psychiatric treatment to be given to the person.”

10.         The Tribunal ordered that the PTO have effect for six months although, as discussed below, it can be revoked at any time.

11. In May 2019, Michael’s parents applied for the PTG to be appointed as Michael’s guardian and manager pursuant to sections 7 and 8, respectively, of the GMP Act.

12. Section 7(1) of the GMP Act states:

7 Appointment and powers of guardians

(1) This section applies if the ACAT is satisfied that—

(a)   someone has impaired decision-making ability in relation to a matter relating to the person’s health or welfare; and

(b)   while the person has the impaired decision-making ability—

(i)      there is, or is likely to be, a need for a decision in relation to the matter; or

(ii)     the person is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the person’s health, welfare or property; and

(c)    if a guardian is not appointed—

(i)      the person’s needs will not be met; or

(ii)     the person’s interests will be significantly adversely affected.

13.         In a report dated 1 May 2019 in support of the application for appointment of the PTG as Michael’s guardian and manager, Michael’s treating psychiatrist wrote:

[Michael] is a 50-year-old male with a very long-standing and severe form of schizophrenia that has left residual paranoid persecutory symptoms, significant apathy and has had a profound impact on his cognitive capacity that in turn impacts upon his ability to manage many aspects of his life safely and independently. [Michael], also as a result of his illness, lacks insight into his needs in particular the need for treatment and support. His family has provided considerable support to [Michael] in an attempt to foster his independent living however [Michael] no longer wishes the family to play that role. He also does not acknowledge … that the support role is required and this is where we hold considerable concern for the future. Without considerable support [Michael] poses a risk to his physical health through disorganisation and neglect and the safety of others and his reputation by acting upon his delusional persecutory beliefs…

I strongly suggest that [Michael] has a treatment resistant illness that has shown evidence of leaving residual and increased cognitive deficits that is making his community living increasingly tenuous. He has had a lot of support from his family that has taken a considerable toll on them and that they now feel they wish to relinquish. Going forward as a result of his profound impairment of his capacity and to have any chance of shaping life in the community [Michael] will need a guardian appointed to make decisions about his life and [the] Public Trustee to manage his money.

14.         This is a regrettably common scenario for persons with schizophrenia.

15.         By order made on 17 May 2019, the Tribunal appointed the PTG as Michael’s guardian and manager. Regarding guardianship, the PTG was given (and still holds) various powers. The relevant parts of the guardianship order state:

The Public Trustee and Guardian is appointed guardian for [Michael] (the protected person) with the following powers:

(a)   ..

(b)   to give any consent required for a medical procedure or other treatment (other than a prescribed medical procedure);

(c)    ..

(d)   to give any consent required for a medical treatment involving treatment, care or support under the Mental Health Act 2015 (other than a prescribed medical procedure).

(e)    ..

(f)    to make other personal decisions needed to ensure the protected person’s health and welfare needs are met and to protect him from unreasonable risks to his health and welfare.

(g)   …

16.         In my reasons, I will refer to the power given to the PTG under paragraph (b) of the order as the medical treatment power. I will refer to the power given under paragraph (d) of the order as the mental health power. I will refer to the power given under paragraph (f) of the order as the health and welfare power.

17.         I turn to the PTG’s application.

The application

18.         By application dated 28 August 2019, the PTG applied for the mental health power to be removed from the order appointing it as Michael’s guardian. Ms Martinovic, a senior officer with the PTG, appeared for the PTG on the application.

19. Ms Martinovic submitted that in circumstances where Michael is receiving treatment under the PTO made on 4 April 2019, the PTG’s power to give consent to treatment under the MH Act cannot be “utilised” and should therefore be removed. Ms Martinovic said:

[W]e wouldn’t be able to consent to any mental health treatment whilst he’s under a PTO, and that’s why we submitted the application to have that [power] removed whilst he’s on the PTO.

20. Ms Martinovic relied on section 11 of the GMP Act to submit that the PTG having the mental health power when it cannot be utilised is an unnecessary restriction on Michael’s freedom of decision and action and so should be removed. Section 11 states:

11 Powers to be least restrictive

The powers given to a person’s guardian or on a manager of a person’s property are to be no more restrictive of the person’s freedom of decision and action than is necessary to achieve the purpose of the order.

21.         Ms Martinovic said that if (in the future) Michael was no longer the subject of a PTO, his care providers could inform the PTG of that change in which case the PTG would apply to the Tribunal for the mental health power to be added, or perhaps more accurately reinstated.

22. Ms Martinovic also relied on section 70A of the GMP Act as to why the mental health power cannot be utilised. Section 70A(1) states:

70A Restrictions on consent by guardian to mental health treatment, care or support

(1) A guardian who has power to give for a person a consent required for medical treatment involving treatment, care or support under the Mental Health Act 2015 may consent to that treatment only if the person—

(a)     does not have decision-making capacity under that Act; and

(b)     does not have an advance consent direction under that Act authorising the treatment; and

(c)     expresses willingness to receive the treatment.

23. Ms Martinovic submitted that where Michael is not expressing “willingness to receive the treatment”, the PTG could not consent to treatment because of the constraint under section 70A(1)(c) and so could not utilise the mental health power.

24.         The factual basis for this submission was unclear. Ms Swiderski and Mr Ellison, Michael’s case managers from ACT Health, City Mental Health Unit, attended the hearing on 27 September 2019.

25.         Ms Swiderski said:

[Michael] is willing at the moment to accept treatment, but he does not understand why he needs it and he doesn't agree that he does need it.

26.         Mr Ellison said:

But given that at the moment he's saying that he'll take the treatment, there is at least some chance that the PTO won't be upheld, because we've got [to] decide is this a genuine willingness to take the medication. We're going to argue that given that overall he doesn't believe it's needed, but we think this is not - like, he's saying he accepts it grudgingly, so he's not really perhaps showing us a true willingness to take it.

27.         Lack of insight is a common scenario for persons with schizophrenia.

28.         Ms Swiderski noted that the PTO made on 4 April 2019 would expire on 3 October 2019, but that an application for a further PTO was listed to be heard on 30 September 2019. Ms Swiderski and Mr Ellison enquired about who would give consent for ongoing treatment if a further PTO was not made. Ms Martinovic said:

We could make a decision for … mental health care and treatment under the authority that we’ve already got, which is [the] health and welfare [power], until we reapply for the mental health [power] to be reinstated.

29.         Ms Martinovic’s response prompted me to ask why the PTG needed the mental health power at all if it could rely on the health and welfare power that it already held. Ms Martinovic stated that “the director looked into the [MH Act] and discovered that we should be requesting the authority for mental health treatment.”

30.         Ms Martinovic said the PTG had been using the health and welfare power for 12 years, but:

because there is no specific reference to mental health, we really need that [specific power] to be able to ensure that we are covered, I guess, to make decisions for mental health.

31.         With reference to her application for the mental health power to be removed from the guardianship order, Ms Martinovic said:

Yes, but we can use the health and welfare [power]. We use it for other reasons, whereas with the mental health [power], we can’t use it at all when they’re under a PTO. The health and welfare [power] we can, like you said it is a generic power so we can use it for many things.

32. Mr Ellison disagreed with Ms Martinovic’s submission that the PTG holding the mental health power while a PTO is in place contradicts section 11 of the GMP Act. Mr Ellison said:

So I think our observation would be that there doesn't seem to be a functional restriction on [Michael] by the guardianship [order] covering mental health treatment while he's on a PTO - you know, because that part is deactivated as long as the PTO is in place, I don't think it's restricting him in terms of his experience of the world because that bit is just not being used.

33.         Ms Horbury from the Office of the Public Advocate also attended the hearing. She too opposed the PTG’s application. Ms Horbury said:

It would seem to me that it would actually be to the benefit of the individual to have these parameters in place so that their situation is not being brought before hearings on a continuous basis because the PTO may have not been renewed; [or] may have been revoked. They still don't have decision making capacity, so it needs to go to a guardianship hearing. It seems to me that the actual care of that person is being lost in this scenario.

I can't see that it is more restrictive for someone to have a PTO [and] a guardianship order … - I can't see that there's a difference in the level of restriction to have both of them sitting there, even though we know that while there is a PTO, the guardian doesn't have that responsibility. It seems to me that the individual's needs to support their health; to support their mental health that having that parameter at the guardianship [level] is still there, so that if the person actually does get to the point where their recovery is such that they're voluntarily taking their medication, but we know that they still don't have capacity to consent that the framework is there to support that.

34. In reply, Ms Martinovic referred to the three criteria in section 7(a), (b) and (c) of the GMP Act that must be met in order to empower a guardian “in relation to a matter” – and in this case Michael’s mental health. Ms Martinovic submitted that the second and third criteria are not met regarding treatment, care and support under the MH Act while a PTO is in place because:

(a) all decisions needing to be made will be made by the Chief Psychiatrist under the treatment plan; and

(b) Michael’s needs regarding treatment under the MH Act will be met by the Chief Psychiatrist.

35.         Referring to the substance of the second and third criteria, Ms Martinovic described it this way:

And that the person's needs will not be met - where, if this authority is taken off, the person's needs will still be met because he's under a PTO. The person's interests will be significantly adversely affected. Well, he's on a PTO, so no they wouldn't be significantly adversely be affected.

That there is likely to be a need for a decision in relation to the matter? Well, no, because he's under a PTO. If the person is likely to do something in relation to the matter that involves or is likely to involve unreasonable risk to the person's health, welfare or property? Well, no, because he's on a PTO.

Consideration

36.         In most cases, and Michael’s circumstances are illustrative, perhaps the most insidious aspect of a person’s mental illness or mental disorder is their lack of insight into their illness or disorder.

37.         A person with reasonable cognition can discuss treatment options for an illness or injury (whatever it may be) and can make informed decisions about the kind of treatment they wish to receive and who should provide it. They have the capacity to weigh up the benefits and the adverse side-effects of treatment when making decisions. They have the capacity to decide not to receive treatment.

38.         However, for a person with a mental illness, that capacity to decide is invariably absent – especially in relation to appropriate treatment of the person’s mental illness. Someone therefore needs to decide on their behalf. Authority for someone else to decide can be given by different legislative mechanisms, as discussed below, depending on the person’s circumstances. However, in every case, the legislature has established systems for protecting and upholding the interests, views and wishes of the person as best they can be ascertained. Where the person has a guardian, the guardian has important roles within each of those statutory systems.

39.         The guardian’s roles bring to mind the circumstances of a person with full cognition who is about to undergo treatment for an illness or injury. Such a person often asks a family member or friend to “be my advocate” as treatment is discussed, determined and provided. They do so because they recognise a likely loss of capacity to do so for themselves as their illness or treatment unfolds. In each system established by the legislature regarding treatment of a person’s mental health, a guardian has a role of that kind.

40. Whilst not applicable for Michael, the MH Act first establishes a system to enable a person with capacity to create documents stating the treatment they wish to receive for a mental illness in the event they lose capacity.

41. Section 26 of the MH Act permits a person (with capacity) to enter into an advance agreement with the person’s treating team that sets out “information the person considers relevant to their treatment, care or support” and “any preferences the person has in relation to practical help the person may need as a result of the mental disorder or mental illness.”

42. Section 27 of the MH Act permits a person (with capacity) to enter into an advance consent direction that sets out “the treatment, care or support that the person consents to receiving if the mental disorder or mental illness results in the person not having decision-making capacity”; “particular medications or procedures” that the person consents to receiving, or does not consent to receiving, if they lose capacity; and the people who may, or may not, be provided with information about the person’s treatment, care or support.

43. Section 28 of the MH Act provides that if a person has stated the treatment, care and support they wish to receive under an advance consent direction and a mental health professional believes that to give that treatment, care or support would be “unsafe or inappropriate”, the health professional may give other treatment, care or support only in two circumstances. First, if “the person is willing to receive the alternative treatment, care or support” and the guardian, health attorney or attorney (as the case may be) “gives consent to the treatment, care or support” in accordance with their appointment. Second, if the Tribunal (on application) orders that the treatment, care or support be given.

44.         In the first circumstance, whether to give that consent is an important and sometimes very difficult decision for the guardian, health attorney or attorney, as the case may be, to make because it would contradict the prior stated wishes of the person.

45.         In many, if not most cases, a person with a mental illness has not executed an advance agreement, an advance consent direction or an enduring power of attorney. Protection and representation of their views, wishes and personal circumstances often therefore falls to a guardian. Michael is such a person.

46. A second system arises when a person is not objecting to proposed treatment for their mental illness, but lacks capacity to consent to the treatment. In such a case, in accordance with ordinary common law principles, those administering treatment require someone (with lawful authority) to consent to the proposed treatment on the person’s behalf. A guardian, appropriately empowered, would have that authority. However, exercise of the power is not unencumbered. When deciding whether to consent to proposed treatment, especially where there are options, the guardian must make a decision in accordance with the decision-making principles in section 4(2) of the GMP Act. In summary, those principles require the guardian to give effect to the person’s views and wishes unless to do so is likely to “significantly adversely affect the protected person’s interests”.

47.         Ms Martinovic stated that the PTG’s mental health power appropriately empowers the PTG to make decisions on Michael’s behalf regarding treatment of his mental illness when he is agreeing to treatment, albeit without capacity to do so. She therefore proposed that the PTG’s mental health power could and should be reinstated if a PTO was no longer in place.

48.         I have reservations about this proposition. I agree that a power of the kind Ms Martinovic describes would be appropriate, but the mental health power, in its terms, does not empower the PTG to give consent required for treatment of Michael’s mental health generally. It empowers the PTG to give consent required for treatment “under the Mental Health Act”. I could not find any provision in the MH Act that concerns treatment of a person’s mental health where the person is agreeing to treatment (albeit without capacity to do so) or any provision that requires consent to be given in such a situation. If there is no such provision, it would seem that the mental health power – in its terms – is superfluous in relation to voluntary treatment. However, in the absence of submissions on the point, I do not express any concluded view.

49. A third system arises where a person without capacity is refusing proposed treatment or any alternative suitable treatment for the person’s mental illness. In such a case, the MH Act provides for involuntary treatment under a PTO provided all the statutory criteria under section 58(2) for making the PTO are met. The PTG’s application requires consideration of the PTG’s role, as Michael’s guardian, in this situation.

50. I begin with the PTG’s role under the MH Act when the Tribunal is considering whether to make a PTO.

51. Under section 54 of the MH Act, before making a mental health order (which includes a PTO) if the person has a guardian, the Tribunal must, as far as practicable, consult with the guardian.

52. Under section 55 of the MH Act, before making a mental health order, the Tribunal must hold a hearing. Under section 188(1)(iv) of the MH Act, if the person has a guardian, the Tribunal must give written notice of the hearing to the person’s guardian.

53. Hearings under the MH Act are ordinarily held in private. However, under section 190(1)(c), a guardian “may appear and give evidence at the hearing”. This entails the right of a guardian to make submissions and to provide evidence about how an application for a mental health order should be decided.

54. Under section 56(1)(f) of the MH Act, when deciding whether to make a mental health order in relation to a person, the Tribunal “must take into account” the views of the guardian.

55. In order to make a PTO, each of the criteria in section 58(2) of the MH Act must be met. The criteria are not confined to medical issues. A guardian would often be well-placed to make submissions or provide evidence about the criteria that concern the person’s ‘life circumstances’.

56. I refer first to section 58(2)(b)(i), which applies when a person such as Michael lacks capacity to consent to treatment, care or support. Lack of capacity is not sufficient to meet the criterion. In order to make a PTO, the Tribunal must also be satisfied that the person “refuses to receive the treatment, care or support”. Whether a person is refusing treatment, care or support is a question of fact, and sometimes can be difficult to decide. Views sometimes differ, with cause, including between members of the Tribunal. When considering whether to make a further PTO, a person may seem to be willingly taking medication and attending appointments, but is doing so only because there is a PTO in place. The person may be promising to comply with all requests regarding treatment if no PTO is made, but there may be reasonable doubt as to whether that will occur, especially where the person does not agree with a diagnosis. The Tribunal, in In the matter of BC and In the matter of FG, dealt with the complexities of refusal. A guardian would often be well-placed to provide factual evidence and to make submissions about whether there is refusal and hence whether a PTO can be made.

57. I refer also to section 58(2)(c), which requires the Tribunal to have a belief on reasonable grounds that the person is doing or is likely to do serious harm to themselves or is suffering or is likely to suffer serious mental or physical deterioration. As explained in In the Matter of ED, a belief on reasonable grounds is an objective test, to be determined from the viewpoint of a reasonable decision-maker. It requires the existence of facts sufficient to induce a state of mind in a reasonable person about a fact or circumstance in issue. For a doctor, or anyone else, to believe (reasonably or otherwise) that a necessary fact or circumstance exists is not (by itself) sufficient. A guardian would often be well-placed to provide factual evidence and to make submissions, one way or another, about whether there are reasonable grounds for believing that section 58(2)(c) is met.

58. I refer also to sections 58(2)(g), which requires the Tribunal to be satisfied that the (proposed) treatment, care or support to be provided under the (proposed) order “cannot be adequately provided in another way that would involve less restriction of the freedom of choice and movement of the person.” A guardian would often be well-placed to provide factual evidence about the person’s lifestyle and personal circumstances, details of which are often known by a guardian but not by a treating team who often obtain and rely upon information from persons (such as a guardian) who have a personal role regarding the health and welfare of the person. Matters of this kind have a direct bearing upon whether section 58(2)(g) is met.

59. When these criteria in section 58 of the MH Act are read together, it becomes apparent that a guardian might have a very significant role in relation to an application for a mental health order, hence the guardian’s right of appearance at the hearing. The guardian’s role is especially important, when deciding whether to consent to or oppose the application, which often requires a difficult choice or compromise between the views and wishes of the person (who opposes the proposed treatment, hence the application for a PTO) and the opinion of a doctor about appropriate treatment.

60.         It is for the Tribunal to decide whether to make a PTO. But whether to consent to, or to oppose, the application for the PTO (and why) is an important decision for the guardian to make.

61. In my view, the guardian’s decision should be informed by the decision-making principles in section 4(2) of the GMP Act mentioned above. True, those principles apply in relation to the exercise of a function under the GMP Act, not the MH Act, but in my view they still provide a legislative guide about how a guardian should respond to an application for a PTO.

62. The guardian’s decisions should also be informed by the principles in section 6 of the MH Act, which relevantly state:

6     Principles applying to Act

In exercising a function under this Act, the following principles must be taken into account:

(a)   a person with a mental disorder or mental illness has the same rights and responsibilities as other members of the community and is to be supported to exercise those rights and responsibilities without discrimination;

(b)   ..

(c)    ..

(d)   a person with a mental disorder or mental illness has the right to have the person’s will and preferences, to the extent that they are known or able to be known, taken into account in decisions made about treatment, care or support;

63. Where the subject person lacks capacity, it falls to persons such as a guardian to ensure that these principles in section 6 of the MH Act are taken into account.

64. In summary, a guardian has an important role, recognised under the MH Act, to promote and protect the protected person’s views and wishes unless those views and wishes will significantly adversely affect the person’s interests.

65.         This proposition underpins the main issue in In the matter of AB. In that case, AB was the subject of a PTO made in November 2016 for a period of six months. On 16 March 2017, AB’s father lodged an application for himself to be appointed as AB’s guardian and manager. On 24 March 2017, a social worker lodged an application for the PTG to be appointed as AB’s guardian and manager. Passionate debate ensued about who should be appointed with power to make decisions regarding AB’s treatment, among other things, but it was not suggested that nobody should be appointed. In the event, the Tribunal appointed the PTG as AB’s guardian. It gave the PTG powers including a mental health power identical to the power given to the PTG per paragraph (d) of Michael’s order. At the time of the PTG’s appointment, AB was the subject of a PTO. The Tribunal, in In the matter of AB, confirmed the PTG’s appointment. An appeal against that decision was dismissed.

66.         If a PTO is made, a guardian continues to have a role on behalf of the protected person in relation to the treatment to be given.

67. As mentioned, section 62(2)(c) of the MH Act provides that the Chief Psychiatrist must determine “the nature of the psychiatric treatment to be given to the person.” However, under section 62(5)(a)(iii), before making such a determination, the Chief Psychiatrist “must take all reasonable steps to consult” with the guardian and, under section 62(5)(b), must take into account the views of the guardian.

68. Compliance with sections 62(5)(a) and (b) would seem to be impossible without dialogue between the Chief Psychiatrist’s treating team and the guardian about proposed treatment. Whether to consent to a treatment plan, oppose it or seek modification of it are important decisions for the guardian to make on behalf of the protected person.

69.         A guardian’s engagement with the treating team is important because treatment for mental illness is not a ‘black-or-white’ issue. There are options. Psychiatrists and case managers properly and repeatedly acknowledge that appropriate treatment of mental illness involves judgement according to the personal and clinical circumstances of the person. Medical personnel rely on information provided by persons with recognised support roles, such as a guardian, when formulating a treatment plan.

70. This extends to choice of medication and dosage, the means by which it is administered, the frequency with which it can or should be administered and practical constraints that may be present. Patients, particularly younger patients, often and reasonably object to particular kinds of medication because of adverse side-effects such as weight gain and drowsiness. Questions often arise about whether the benefits of a proposed treatment outweigh its adverse side-effects or whether an existing treatment should be varied. A guardian has an important role, recognised under section 62(5)(a) and (b) of the MH Act, to participate on behalf of the protected person in discussions about issues of these kinds.

71. Accordingly, I do not accept Ms Martinovic’s submission that the PTG “wouldn’t be able to consent to any mental health treatment whilst he is under a PTO”. Whether to consent treatment or to an alternative suitable treatment are important and independent decisions for the PTG to make, even if the decisions are not necessarily determinative of an outcome. The provisions of the MH Act to which I have referred demonstrate that decisions about treatment are to be made in the framework of a partnership between the treating team, the person and the person’s guardian, among others.

72. A guardian also has a role in determining whether a PTO should continue. Under section 79 of the MH Act, the Tribunal “must review a mental health order in force” if the person or the person’s representative applies for review. A review could be properly sought on the basis that the order, or part of the order, is no longer required. The person’s representative is defined in section 79(7) and includes the person’s guardian. Whether to apply for a review of a mental health order is a decision that a guardian would need to consider from time to time because a person’s circumstances can change. If, by reason of a change, a criterion for making a PTO is no longer met, the MH Act requires that the PTO be revoked. Michael’s situation is a case in point.

73.         At the time I heard the PTG’s application, there was a real question as to whether Michael was no longer refusing treatment, care or support. As mentioned, for a person without capacity, refusal is a pre-condition for making a PTO. In my view, a guardian has a role to advise if (in the guardian’s opinion) the person is no longer refusing treatment.

74.         Refusal can also vary according to the proposed treatment. Patients are often willing to receive one kind of medication and sometimes request it, but are opposed to others. Dialogue between the person, the treating team and a guardian periodically produces resolution and willingness to receive treatment of an appropriate kind. If that occurs, the PTO must be revoked because the pre-condition of refusal is no longer met.

75.         Other situations relevant to the making of a PTO can also change, particularly a change of circumstances that demonstrate that treatment, care or support can be adequately provided in another way that involves less restriction of the freedom and choice of movement of the person. A guardian, aware of such a change, would have a proper basis for seeking review of the PTO, especially if there were a difference of opinion with the treating team about the significance of the change.

76. The PTG’s roles regarding Michael’s treatment arise under the applicable provisions of the MH Act by reason of its status as his guardian, not in the exercise of any power granted to it as Michael’s guardian under the GMP Act. Ms Martinovic agreed that the PTG should continue to hold an appointment as Michael’s guardian, so the question remained: should the mental health power be removed when a PTO is in place?

77.         For two reasons, I was not persuaded that the power should be removed.

78. First, in its capacity as Michael’s guardian, the PTG has important roles when a PTO is in place regarding Michael’s treatment, even if those roles do not extend to a consent “required” for treatment – which is a component of the mental health power. To remove the power from the guardianship order risks an impression that decision-making responsibility for Michael’s treatment under the MH Act has moved in a complete way from the PTG to those administering treatment under the PTO. Indeed, referring to Ms Martinovic’s submission quoted at paragraph 34 above, this perceived movement of responsibility underpinned the PTG’s application. With respect, that is not correct. For the reasons mentioned, the MH Act provides that decisions about treatment under a PTO are to be made in the context of the partnership, and that a guardian is a member of that partnership.

79.         Second, there is a high risk of practical difficulties that would arise if the Tribunal were to remove the PTG’s mental health power.

80. A PTO can remain in place only when the criteria for making it continue to be met. Under section 64 of the MH Act, the Chief Psychiatrist (after consultation with the person’s carer and/or nominated person where applicable) must tell the Tribunal if satisfied that the person is no longer a person in relation to whom the Tribunal could make a PTO. If the Tribunal is satisfied that the person is no longer a person in relation to whom the Tribunal could make a PTO, the Tribunal “must revoke” the PTO. This means that the PTO can end at any time, and at short notice.

81.         If the PTO is revoked, a system for providing treatment on a voluntary basis would need to activate. For a person such as Michael who remains without decision-making capacity, the PTG (as guardian) would need to give consent on his behalf to treatment, care or support (particularly consent to him receiving antipsychotic medication).

82.         In other words, if the PTG’s view about the operation of the mental health power is correct, its removal (in the absence of PTO) would leave no one with power to consent to treatment on Michael’s behalf.

83.         I was not persuaded by Ms Martinovic’s submission that if the PTO was revoked, the PTG could give consent with reliance on its health and welfare power pending reinstatement of its mental health power. Either the health and welfare power entitles the PTG to give consent regarding Michael’s mental health treatment or it does not. The notion that it gives that entitlement, but only in the short term, is misconceived. I agree with the advice Ms Martinovic states the PTG previously received that the health and welfare power should not be construed so broadly as to permit the PTG to give consent to a treatment so significant and specific as treatment for a person’s mental health.

84.         For the reasons given in In the Matter of Renée, I would agree that the PTG’s existing medical treatment power in paragraph (b) of the guardianship order is sufficient to enable the PTG to give any consent required for treatment of Michael’s mental health, including any treatment under the MH Act (if such a situation can arise). However, I understand that the PTG takes a more cautious approach by applying for a specific power in order to give consent required for treatment under the MH Act. That is a matter for the PTG.

85.         I accept also Ms Horbory’s submission that, from a therapeutic viewpoint, Michael should not be the subject of Tribunal hearings on a periodic basis in order to remove or reinstate the mental health power according to whether a PTO is or is not in place. Persons with mental illness often do not attend Tribunal hearings, even though the outcome is likely to affect their interests, because (regrettably) they find attendance at hearings to be too stressful. The proposal that applications to vary a guardianship order should be periodically heard, simply to remove or reinstate a mental health power, giving notice each time to the protected person about the change, is not desirable.

86. I should also respond to Ms Martinovic’s submissions regarding sections 11 and 70A of the GMP Act.

87. Regarding section 11 of the GMP Act, I struggle with the proposition that the PTG continuing to hold the mental health power is an unnecessary restriction of Michael’s “freedom of decision and action”. How could the mental health power be a restriction if, as Ms Martinovic submitted, it cannot be utilised? Also, with a PTO in place permitting involuntary treatment and detention, it is hard to envisage how the PTO’s mental health power is a further or unnecessary restriction. I share Mr Ellison’s view that the existence of the mental health power when a PTO is in place is not restricting Michael’s “experience of the world”. It is simply a power which, in its terms, is not being used when a more restrictive statutory arrangement (that is, the PTO) is in place.

88. Section 70A of the GMP Act is not relevant. It concerns the exercise of a power to give “consent required” for medical treatment under the MH Act, and places constraints on the exercise of such a power. When a PTO is in place, the PTG (or any guardian) is not giving any “consent required” for medical treatment.

Concluding remarks

89. The MH Act gives the PTG, as Michael’s guardian, a role that is very different to its role under the GMP Act. There are sound reasons for that difference. In guardianship law, courts and tribunals have repeatedly confirmed the need for a ‘light touch’ when appointing a guardian or giving powers. A person with impaired decision-making ability should, wherever possible, be able to make decisions for themselves even if with support. Ordinarily, a power should not be given to a guardian, or should be removed, if there are no decisions needing to be made regarding the subject of the power. This reasoning underpinned the PTG’s application.

90. The goal, under these principles of guardianship law, is to minimise the deprivation of the person’s freedom of action to the extent possible. However, this has little application where the person is the subject of a PTO which permits involuntary treatment and detention. In that situation, a guardian has a materially different role, namely to protect and advocate for the person’s interests, views and wishes in the ways prescribed under the MH Act. Its role arises by reason of its status as the person’s guardian, not in the exercise of a power granted to it under the GMP Act.

………………………………..

Presidential Member G McCarthy

HEARING DETAILS

FILE NUMBER:

GT 172/2006

PARTIES, APPLICANT:

Public Trustee and Guardian

PARTIES, PROTECTED PERSON:

‘Michael’ by a pseudonym

COUNSEL APPEARING, APPLICANT

N/A

COUNSEL APPEARING, RESPONDENT

N/A

SOLICITORS FOR APPLICANT

N/A

SOLICITORS FOR RESPONDENT

N/A

TRIBUNAL MEMBERS:

Presidential Member G McCarthy

DATE OF HEARING:

27 September 2019