KKQ (Guardianship Directions) - [2010] TASGAB 21

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

KKQ application for guardianship by THE ROYAL HOBART HOSPITAL

Neutral citation: KKQ (Guardianship) [2010] TASGAB 21

REASONS FOR DECISION

Anita Smith (President)
Elizabeth Love (Member)
William Downie (Member)

Guardianship – the Public Guardian – ability of the Board to impose standard directions to a guardian regarding the operation of the order – performance by the Public Guardian of her statutory duties – record keeping by the Public Guardian - voluntary National Standards of Public Guardianship - vulnerable represented person in need of advocacy and support

Guardianship and Administration Act 1995 Part 4, sections 6, 8, 15, 20, 25, 27, 31, 66, 67, 68, 82
Guardianship and Administration Regulations 2008 regulation 8

Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478
Pambula (1988) 14 NSWLR 387
NN (Review Guardianship) 2010 TASGAB 15
MEN (Guardianship) [2009] TASGAB 22

This is a decision about whether, in appointing a guardian, the Guardianship and Administration Board ought to impose the directions set out in a document prepared by the Board called Standard Directions to a Guardian (hereafter called the ‘Standard Directions’) to guide the actions of the Public Guardian during her term of appointment as a guardian for an adult with a disability.
After a hearing on 24 September 2010 the Board was satisfied that KKQ (hereafter ‘the represented person’) has a disability, namely alcohol related brain injury, which renders her incapable of making reasonable decisions. Her disability results in poor executive functioning, a lack of ability to initiate usual tasks of daily living and mild difficulties with planning. The Board was satisfied that the represented person needs a guardian to make decisions about health care, access to her premises for health care workers, provision of services including home maintenance and decisions about where she should live permanently or temporarily. The Public Guardian was the only nominee for appointment as a guardian and implied, by comments made by her delegate during the hearing, consent to appointment.
At the hearing the Board asked the Public Guardian’s delegate whether Standard Directions ought to apply to this appointment. The Standard Directions are set out in Appendix 1 and their contents were known to the Public Guardian’s delegate for reasons explained below. The delegate responded that if such directions were made, the Board’s decision would be appealed. (The delegate is a qualified legal practitioner, but perhaps unaware of the usual etiquette of not threatening an original jurisdiction with appeal.) However she was unable to explain why that position had been reached. Accordingly, the Board granted the Public Guardian’s delegate 21 days to provide written submissions on that point. The Board then issued an order as follows:
1.That the Public Guardian be appointed as the represented person’s guardian.
2.That the powers and duties of the guardian are limited to decisions concerning;
(i)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,
(ii)where the represented person is to live either permanently or temporarily,
(iii)provision of services including home maintenance, and
(iv)providing access to the represented person’s premises.
3.That the guardian is to make a written submission to the Board within 21 days in relation to whether or not the Standard Directions to a Guardian should apply.
4.That the order remains in effect to 23 September 2013.
The Public Guardian’s submissions were supplied to the Board on 15 October 2010. This decision relates specifically to whether the Standard Directions will be imposed upon the Public Guardian in this case.

The Board’s Powers to Give Directions to a Guardian:

Part 4 of the Guardianship and Administration Act 1995 (‘the Act’) provides for the appointment of a guardian for a person with a disability to make personal decisions on behalf of that person. The Board may appoint the Public Guardian as a guardian for a person.[1] When the Board makes a guardianship order it may make the order subject to such terms, conditions and restrictions as the Board considers necessary.[2] Additionally the Board may, of its own motion, direct or offer advice to a guardian in respect of any matter.[3] A direction is binding upon a guardian.[4]
[1] Sections 15(1)(h) and 21 of the Guardianship and Administration Act 1995 (Tas)
[2] Section 20(1) of the Guardianship and Administration Act 1995 (Tas)
[3] Section 31(4) of the Guardianship and Administration Act 1995 (Tas)
[4] Section 31(5) of the Guardianship and Administration Act 1995 (Tas)
The Public Guardian submits that these powers do not mean that “the Board can dictate what the guardian should do with regard to anything at all.” She supports this statement with a quotation from the minority reasons of Kirby and Callinan JJ in Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478. The circumstances of that case have little relevance to the matter at hand but dealt with a judge’s ability to dispense with a jury trial in a civil case. However the particular passage to which the Public Guardian referred relates to an approval of the reasoning in Pambula (1988) 14 NSWLR 387 (also a civil jury trial case). Their Honours stated:
“… That proposition says no more than that, where a discretion is conferred by statute, it must be exercised in accordance with the language by which it is conferred and to achieve the purposes for which the power has been granted. To talk of "absolute" judicial discretions, at least where such discretions are conferred by an Australian statute, involves a contradiction in terms. Absolute discretions are a form of tyranny.
All repositories of public power in Australia, certainly those exercising such power under laws made by an Australian legislature, are confined in the performance of their functions to achieving the objects for which they have been afforded such power. No Parliament of Australia could confer absolute power on anyone. Laws made by the Federal and State Parliaments are always capable of measurement against the Constitution. Officers of the Commonwealth are always answerable to this Court, in accordance with the constitutional standard. Judges within the integrated judicature of the Commonwealth are answerable to appeal and to judicial review. This does not mean that a discretionary power given to a judge, should be narrowly confined or hemmed about with restrictions and limitations, whether called principles or "guidelines" or anything else. But it does mean that there are legal controls which it is the duty of courts to uphold when their jurisdiction is invoked for that purpose.” (Parts quoted in the Public Guardian’s submission are in italics, footnotes are omitted.)
The quoted passage represents obiter dictum rather than the ratio decidendi, and it should be noted that the majority expressly declined to examine whether Pambula (supra) was consistent with other High Court judgments. However the reference is useful and the Board has interpreted that obiter comment to infer that the powers to impose directions or conditions under section 20(1) and 31 of the Act are not absolute or tyrannical and should be:
(i)exercised by the Board in accordance with the language by which it is conferred,
(ii)confined to ensuring performance of Board’s functions in achieving the objects for which it has been afforded such power,
(iii)not narrowly confined or hemmed about with restrictions and limitations, and
(iv)subject to legal controls.

The Public Guardian also reminded the Board that in the event of exercise of powers beyond its limits there would be a jurisdictional error. However, how such error might be found in the case at hand has not been detailed. At best, the Public Guardian states that the Board’s power to give directions must be related to the guardianship of the represented person and must be read subject to other provisions of the Act, citing sections 6, 25 and 27 of the Act. How the proposed directions fail to be related to the guardianship of the person or fail other tests set out in Kirby and Callinan JJ’s judgment has not been detailed in the Public Guardian’s submissions.
The Public Guardian submits that “the power to give directions must naturally be limited to matters relating to the guardianship of the represented person and must be read subject to the other provisions in the Act which govern the powers and duties of a guardian.” The Board does not disagree with that statement. Where the Board disagrees with the Public Guardian’s submission is in the inference that the Standard Directions are unrelated to the guardianship of the represented person or are inconsistent with the provisions of the Act which govern the powers and duties of a guardian.

Background to the Development of Standard Directions to a Guardian:

Directions to a guardian will always be a matter for case-by-case assessment. The Standard Directions were developed in response to need perceived by the Board to provide to the Public Guardian clear expressions of the appropriate level of performance expected and, by reason of the powers vested in the Board, required of that statutory officer prima facie, when appointed by the Board as a guardian. The following discussion sets out the reasons for that perception. Firstly we shall address why it has become necessary to address the Board’s concerns by way of specific directions rather than through bureaucratic channels. Later in this statement of reasons, we will detail the need for directions for this individual case.
In recent sequential Annual Reports to Parliament the Public Guardian has noted:
2007-2008:        "The demands on our time, coupled with the emergency and after hours work have been immense. Without additional support and resources provided to the office in the past financial year, this office would have been forced into scaling back the services that are provided. Now the office will be able to face the coming years in a much better position to provide necessary decisions for people most in need” (emphasis added)
and
2008-2009:        “The demands on our time, coupled with the emergency and after hours work have been immense. This office now needs to prioritise clients, and limit the service it can provide.” (emphasis added)
The reason for the change between the two year’s reports was a purported increase from 169 to 320 clients per annum (151 additional Public Guardian clients), however the Board only appointed the Public Guardian in 237 cases (only 68 additional Public Guardian clients) in that year, meaning there appears to be a statistical error in the Public Guardian’s assessment. In any event, it appears to the Board that the Public Guardian has imposed the limitations on client service anticipated in the 2008-2009 report during the recent reporting year.
The Board appoints the Public Guardian in 84% of applications for appointment of a guardian for a person. The Board has a monitoring and compliance role in obtaining reports[5] and reviewing the operation of guardianship and administration orders, including orders where the Public Guardian is appointed.^[6]
[5] Section 66 of the Guardianship and Administration Act 1995 (Tas)
[6] Section 67-68 of the Guardianship and Administration Act 1995 (Tas)
The Public Guardian, like the Board, is charged with the responsibility to make decisions on behalf of some of Tasmania’s most vulnerable adults. Persons represented by the Public Guardian all have significant disabilities and may not be able to raise concerns or provide feedback about the operations of that office, or be taken seriously if they do. In other jurisdictions, represented persons and their families have facilities to have individual decisions by guardians reviewed by administrative tribunals. In Tasmania, concerns about guardianship performance are mostly addressed through the Board’s review of guardianship orders. Over a period of time the Board has attempted to bring concerns about performance of guardians employed by and acting as delgates of the Public Guardian to the attention of the Public Guardian in a systemic way. However, as detailed below, these attempts have not been successful.
In reviewing annual reports by guardians and determining applications to review guardianship orders or applications for advice and directions to a guardian, the Board has developed concerns about the performance of officers of the Public Guardian including in the following areas:
(i)The Public Guardian and her delegates do not appear to always have sufficient engagement with represented persons to satisfy the Board that they are able to make decisions in the best interests of the person or decisions that reflect those persons’ wishes. Delegates in hearings report not having met the represented person in person even though they have made significant treatment and accommodation decisions on behalf of the person and, at times, over an extended period. Some delegates are content to communicate with the represented person through a case manager or medical practitioner which appears to be inimical to the principles of the Act.
(ii)The Public Guardian’s and her delegates’ annual reports to the Board and reports following emergency appointments have, at times, not been presented to a reasonable standard of expression, content and structure, and do not consistently contain adequate detail about the decisions a guardian has made and the efficacy of the order. Inadequate reporting hampers the Board’s role in receiving reports.
(iii)Delegates have reported in proceedings that they do not keep accurate and contemporaneous file notes or records of their discussions with the represented persons, the care teams, family members and friends of the represented person causing the Board concerns about a lack of accountability and transparency in decision-making.
(iv)The Public Guardian and her delegates lack clear and consistent procedures to ensure that, when an order is no longer necessary, an application to review the order is made promptly to ensure that excessive restrictions are removed. The Board assumes that the guardian has a duty, implied by the principles in sections 6 and 27 of the Act, to seek revocation of orders whose necessity has waned.
(v)Delegates have reported that service providers, including medical practitioners, impose decisions on represented persons without consulting the guardian and that a guardian’s authority is sometimes overlooked resulting in potentially unlawful medical treatment of an incapacitated person or other significant guardianship decisions made without sufficient authority, again circumventing or ignoring the appointment of a guardian.
These concerns were raised with the Public Guardian in a meeting between her and the President of the Board in August 2009. When that discussion did not result in noticeable improvements in performance, the President made a written submission to the Public Guardian and the Department of Justice on 26 May 2010 suggesting a comprehensive review of the structure of the Office of the Public Guardian and her performance of all 12 functions in section 15 of the Act, with a view to determining whether a significant increase in funding or other action was required to ensure that the rights of Tasmanians with disabilities as enshrined in the Act were not eroded. The President suggested that stakeholders might be consulted about performance issues and comparisons made with interstate models of practice to identify the level of funding required to ensure that the Public Guardian’s statutory functions were performed to an level consistent with the requirements of the Act. The submission was rejected by both the Public Guardian and the Department of Justice. The Public Guardian also rejected an opportunity to meet to discuss the President’s submission.
The Board has considered its concerns against the background of national performance benchmarks. The Board, the Public Guardian and the Public Trustee are all represented on the Australian Guardianship and Administration Council (AGAC), a voluntary professional body which represents all Australian Government agencies involved in adult guardianship practice. In 2001 AGAC endorsed a document created by the statutory guardians and advocates in Australia called National Standards for Public Guardianship. AGAC endorsed an updated version of that document in late 2009, a copy of which is set out in Appendix 2. Tasmania’s Public Guardian was a party to both endorsements. These National Standards have set minimum benchmarks for the performance of public guardianship in Australia since 2001, including benchmarks for the minimum numbers of visits to a represented person per year, standards for informing persons under guardianship about their rights within the guardianship relationship and expectations of accountability and transparency. The National Standards do not have force of law and are merely a voluntary code. However they do provide evidence of the minimum expectations that are considered by interstate equivalents of the Public Guardian and endorsed by the Public Guardian of Tasmania to be appropriate to the performance of their work.
Unfortunately, since 2001, the Public Guardian has not consistently or reliably met these minimum National Standards. An example of the failure to meet the standards was discussed in the Board’s decision in NN (Review Guardianship) 2010 TASGAB 15. In particular the Public Guardian has never adopted a practice of sending letters outlining the boundaries and content of the guardianship role to the represented person, key persons in the represented person’s life and service providers when doing so might have avoided the difficulties set out in paragraph 14(v) above.
Because the Public Guardian is the guardian of ‘last resort’ the Board has faced the problem in review hearings that although the Public Guardian has not performed well in the role as a guardian, the Board has no option but to reappoint the guardian and trust that applying strict directions will address the deficits in performance. This difficulty was discussed in the Board’s decision in MEN (Guardianship) [2009] TASGAB 22.
Most hearings of the Board do not result in statements of reasons. However MEN and NN are clear examples of the Board’s concerns. The failure to adhere to the National Standards does not mean that the Public Guardian has breached any laws, but it does mean that Tasmanians with severe disabilities who are under guardianship experience a significantly lower standard of guardianship (i.e. less observance of section 6 principles) than their interstate counterparts.
The Board has been informed that the Public Guardian is now ‘working towards’ implementation of the standards but is hindered by resource and technology issues. However, the Public Guardian also told the Board in the hearing in NN that if her office was required in directions issued by the Board to adhere to the National Standards then it would have to decline to allocate certain cases because it will not have the resources to apply to all clients, by which the Board understood her to be saying that the office would decline to discharge any guardianship duties for those unallocated cases. If this occurs, the proper administration of the functions and principles in the Act will be seriously undermined.
As noted above, the Board is the only body that regularly receives reports about the performance of the Office of the Public Guardian. The Board attempted to bring deficits that it perceives in that performance to the attention of the Public Guardian and the Department through its decisions, in meetings and in a comprehensive written submission, but none of these approaches has resulted in consistent improvements in the key areas. As this decision is being written, the Department has indicated that an independent review of the Office of the Public Guardian will be undertaken. At this stage terms of reference have not been settled and no reviewer has been nominated.

In the Board’s view, the Standard Directions are required to ensure that the Public Guardian is meeting the basic requirements of the Act with respect to appointments as guardian for individuals. The Standard Directions, in effect, are a means to unequivocally convey the Board’s expectations of and to a guardian. When systemic avenues to improve the performance of guardians were frustrated, the Board developed the Standard Directions as a case-by-case means within its power to effect a level of service and performance of guardians in line with the principles in section 6 of the Act.

Consultation with the Public Guardian in the Development of the Standard Directions:

In early July 2010 the President circulated amongst other members of the Board a draft of the Standard Directions for their comments. After a comment period, a second draft was then sent by the President to the Public Guardian on 23 July 2010 with the following covering remarks:
“I attach for consultation draft copies of Standard Directions in guardianship orders and emergency guardianship orders. These have been circulated to Board members for their comments.
Like the reporting format, these have been designed to reflect the National Standards and the legislation. The idea of the directions is that, following consultation and settlement of the documents, future appointments of OPG will be subject to the standard directions. Such standard directions will also be available on the Board's website so that persons reading orders will have the background available to the order itself.
Therefore it is important to have your feedback upon the attached documents.
I would be pleased if you could consult with your staff and respond by 14 August 2010.”
The Public Guardian responded on 9 August 2010:
“You can expect a response to the substantive issues on both the Reports and Standard Directions once we have received legal advice on each document from the Solicitor General.”
On 31 August 2010 the President, having received no substantive response within the designated (and extended) consultation period, wrote to the Public Guardian indicating that the Board would, where appropriate, commence issuing Standard Directions as part of orders following hearings.
The Public Guardian subsequently provided a written response to the Standard Directions on 7 September 2010 with similar but truncated reasons for rejecting the notion of Standard Directions as those set out in the current submissions before the Board.
Because the Public Guardian has, in the consultation period and in submissions in this matter, chosen to focus on the purported unlawfulness of the Standard Directions and not provided any feedback on the detail or practical possibilities of the document, the Board can only assume that, if the Standard Directions are lawful, she is content to and able to abide by the directions as written. Unfortunately, beyond stating a belief that directions would be ultra vires the Public Guardian declined to make a submission about whether all or any of the Standard Directions should apply in this specific case or to relate the directions to the facts of this matter.[7]
[7] The factual content (but not the conclusions drawn from those facts) of paragraphs 11 to 26 was provided to the Public Guardian on 26 October 2010 with an opportunity to comment upon its accuracy by 1 November 2010, but no response was received.
Noting that the powers of the Board to impose directions are ‘not narrowly confined or hemmed about with restrictions and limitations,’ in the following paragraphs, the Board will assess the Standard Directions against the boundaries set out in the minority reasons for judgment in Gerlach (supra) as submitted by the Public Guardian that it ought. However the Board recognises an inherent conflict in attempting to assess, at arm’s length, a document that was written by one of the writers of this decision and approved by members of this Board, an acknowledgement that applies to each of the following paragraphs.

Are the Standard Directions absolute or tyrannical?

Firstly, the Standard Directions were subject to a consultation period with the Public Guardian as detailed above so there was an opportunity for her to alert the Board to any tyrannical or absolute effects, but none were detailed other than an assertion as to their unlawfulness. Secondly, the Standard Directions were derived from the base of National Standards for Public Guardianship a document to which this Public Guardian has given her endorsement as the minimum standards applicable to persons in her office and like offices around Australia. Thirdly, the Board does not apply the standard directions without first ascertaining the views of the Guardian and then determining the extent to which they should be applied to the particular case at hand. The Board does not consider that the Standard Directions are absolute or tyrannical.

Are the Standard Directions exercised by the Board in accordance with the language by which it is conferred?

The Board believes that the language and objects (discussed below) of the legislation are closely linked. However, to the extent that their Honours in Gerlach (supra) meant ‘language’ in a literal sense, the Standard Directions have been written in language that is consistent with the principles and provisions of the Act.
The language of the Standard Directions also allows for variations according to conditions. For example in Directions 1 and 3 the use of the term “As soon as possible after appointment…”, Direction 1.6 requires the guardian to make “… reasonable attempts …” and Direction 1.4 requires that the guardian take “… appropriate action …”. Thus the directions are couched in broad terms that take into account difficulties that a guardian might encounter and limits to their abilities to effect certain outcomes.
In this vein, the guardian is also still afforded responsibility within the Standard Directions to determine who is a ‘key person’ or a relevant ‘service provider’ for the purposes of the performance of the guardian’s functions.
In a general sense the language of the Guardianship and Administration Act 1995 reflects the de-institutionalisation movement of the 1980s and 1990s. The language and principles of the Act are deliberately emancipatory and empowering of people with disabilities. The Standard Directions also attempt to empower represented persons, by ensuring that their relationship with the guardian is accountable and transparent, and to facilitate the emancipation of represented persons from unnecessary or inactive guardianship orders by ensuring that a guardian accepts responsibility for monitoring the necessity for the order.

Are the Standard Directions confined to ensuring performance of Board’s functions in achieving the objects for which it has been afforded such power?

The broad functions of the Board are set out in section 8 of the Act. The Board’s powers to impose directions upon a guardian come from section 20(1) of the Act - to make an order “… subject to such conditions and restrictions as the Board considers necessary” - and section 31(4) to “… direct, or offer advice to, a guardian in respect of any matter.” After a review hearing the Board may “vary or continue a guardianship order … subject to any conditions or requirements it considers necessary …”. In requiring annual reports under section 66 of the Act, the Board may require particulars of the circumstances of a person who is subject to a guardianship. All of these powers are to be exercised in accordance with the principles in section 6 which also binds the actions of the Public Guardian.
Section 6 of the Act requires that a function or power conferred, or duty imposed, by the 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.”
As detailed above, the Board has lost confidence in the Public Guardian’s performance of functions arising from appointment by the Board because (inter alia) her officers have not consistently established direct relationships with represented persons, have not consistently ensured that unnecessary orders are reviewed by the Board, have not consistently ensured that third parties respect the authority of the guardian to make decisions. If the Board has lost confidence in the ability of the guardian of last resort to consistently meet the principles in section 6 of the Act, the Board would not be discharging its duties if it were to appoint that guardian without giving sufficient specific directions regarding the performance of that role. The Board considers that to meet the principles in section 6 in appointing the Public Guardian, it needs to set out its expectations of a guardian in unequivocal terms, such as these Standard Directions.

Are the Standard Directions subject to legal controls?

The imposition of the Standard Directions by the Board is subject to a number of legal controls. Firstly, during a hearing, parties to an application will have an opportunity, as they did in this case, to comment upon whether or not the directions ought to apply. If the Board proceeds to impose directions without seeking input, or ignores good counsel about the applicability of certain directions, parties have the right to appeal that direction to the Supreme Court pursuant to section 76 of the Act.
Secondly, after the imposition of a direction, a party may still apply pursuant to section 67(b) or (c) for a review of the terms of the order if the circumstances have altered or if there is other evidence that the terms are not suitable to the appointment. Thirdly, a guardian may apply pursuant to section 31 for advice and directions from the Board which could also result in the amendment of the terms of the order.
Although a breach of the directions could result in summary prosecution, this process, too, is subject to legal controls. These controls include the independent prosecutorial discretion of the Police and the Director of Public Prosecutions as well as the independent functions of a Court in trying and possibly sentencing such a breach. Prosecution is not seen by the Board to be the first resort to enforce the Standard Directions as it is far more likely (and far more effective) that a purported breach would be brought to the attention of the Public Guardian in proceedings under section 31(4) or 67 of the Act and she would be given an opportunity to address that breach or explain her reasons before any further action were considered.
The Board shall now consider the particular directions in light of submissions made by the Public Guardian.

Direction 1 – Relationship between the represented person and the guardian

Essentially Direction 1 is aimed at ensuring that a guardian will be responsible for the establishment and maintenance of the relationship between the guardian and the represented person (1.1).   This is prescribed with some basic actions requiring that the guardian:
(a)   Speaks directly to the represented person within 48 hours of appointment and visits within at least 5 days of appointment as guardian. (1.2)
(b)   Ensures that the represented person is given basic written introductory information about the guardianship relationship and their rights within that relationship. (1.3)
(c)   Takes appropriate preventative action if there is any evidence of abuse, neglect or exploitation of the represented person. (1.4)
(d)   Visits the represented person at least once in each year of appointment. (1.5)
(e)   Consults the wishes of the person in making decisions and reporting to the Board. (1.6 and 1.10)
(f)    Informs the represented person about decisions made on his or her behalf (1.7)
(g)   Provides to the represented person written reasons for their decision if requested. (1.8)
(h)   Keeps records of all discussions. (1.9)
The Public Guardian submits that, contrary to the Act, Direction 1 broadens the scope of a guardian’s obligations and impermissibly extends the obligation in section 27 of the Act. She also submits that only the guardian can determine what is in the best interests of the represented person.
In the Board’s view, Direction 1 specifies the Board’s expectations of the Public Guardian in her appointment in this particular case acting in accordance with section 27 of the Act but does not broaden the scope. It also does not prevent a guardian from undertaking additional activities or exercising discretion in the manner of decision making. Direction 1 is primarily directed towards ensuring the principles in section 6(c) and section 27(2)(a) and (e) are not overlooked by a guardian who may be overwhelmed by the concerns and arguments of case managers, service providers and medical practitioners who can be more persuasive and empowered than the represented person.
The Public Guardian specifically objects to Direction 1.2(b) (a direction not to make any decisions on the represented person’s behalf until the guardian has visited the represented person unless there are circumstances of urgency that require an immediate decision to preserve the safety and security of the represented person) stating it is inconsistent with the obligation on a guardian to act in the best interests of the represented person. The Board observes that the principles in section 6 of the Act are weighted equally. Additionally, one of the means by which a guardian acts in the best interests of person, according to section 27(a), is “to act as far as possible in consultation with that person, taking into account, as far as possible, his or her wishes.” In the Board’s view, the Public Guardian in her appointment in this particular case properly discharging her functions under the Act should meet the represented person as soon as possible after appointment to obtain an independent and reliable view of their wishes and their best interests, and delay making major decisions until that can be established. Some decisions made by guardians are irreversible. To make a decision on behalf of a represented person without having met them in person, in the Board’s view, invites the opportunity for significant error in considering his or her wishes and best interests.
Direction 1.2(b) is aimed at ensuring that the Public Guardian in her appointment in this particular case receives a direct account of the represented person’s wishes and does not rely on other persons who may have other agendas, or a conflict of interest, to relay those wishes in all circumstances except where an immediate decision is required to preserve the safety and security of the represented person.
The Public Guardian also specifically objects to Direction 1.1(c) and 1.9 but these shall be separately dealt with in these reasons in relation to an obligation to keep accurate records.
The Public Guardian submits that Direction 1.4 introduces duties over and above the duties in section 27(e). The Board considers that Direction 1.4 is merely consistent with section 27(e) and sets the Board’s minimum expectation of what the Public Guardian in her appointment in this particular case ought to do if she discovers that the represented person has been abused, exploited or neglected. In any event, the obligation is placed no higher than to “take appropriate action or refer for investigation by appropriate authorities” which still allows for a great deal of discretion by the guardian as to what constitutes ‘appropriate action’ and who are the ‘appropriate authorities.’

Direction 2 - Advocacy on behalf of the represented person

Direction 2 requires that the guardian will advocate to ensure that the represented person has appropriate accommodation, health care, support services and assistance to participate in the community, for the options that best promote quality of life and opportunity for the represented person and for the least restrictive alternative that meets the needs of the represented person. The Public Guardian submits that Direction 2 attempts to mandate the circumstances in which she must advocate for a represented person when section 27 only requires that it be done ‘as far as possible’.
Directions 2.1, 2.2 and 2.3 each limit the requirements upon the Public Guardian in her appointment in this particular case to advocate to ‘within the scope of the guardian’s authority’. These directions are taken directly from the ‘Advocacy’ heading of the National Standards of Public Guardianship. It is the Board’s view that they are simply explanatory of and consistent with the requirements set out in sections 6 and 27 of the Act. Such advocacy is also consistent with the particular functions of the Public Guardian as established in section 15 of the Act.

Direction 3 - Relationship between the guardian and key persons in the represented person’s life

Direction 3 is similar to Direction 1, but places an onus on the guardian to establish and maintain a relationship with key persons in the life of the represented person. The Public Guardian submits that it is her practice to consult with key persons in the represented person’s life and that it is unnecessary to create a direction to do so. Again, this direction is written against the background of the National Standards. The Public Guardian notes, correctly, that section 27 only requires consultation with the person under guardianship and not key persons in their life. However the Board’s view is that the Public Guardian in her appointment in this particular case should obtain information from key persons in the represented person’s life that will be useful in assessing what is in their best interests, of being informed of any wishes they may have expressed at other times in their lives and those persons may also be able to offer suggestions about less restrictive alternatives that might be available to the guardian in making decisions.
Direction 3 ensures that key persons in the represented person’s life are given basic written introductory information about the guardianship relationship and their rights within that relationship, similar to that set out in Direction 1. This is important because such key persons will be in a position to reinforce to the represented person the role of the Public Guardian in her appointment in this particular case and may support the represented person to accept, review an order or challenge a decision of a guardian. Many people with disabilities may lack the literacy or advocacy skills to be able to challenge the decisions of a guardian. Therefore informing key persons in their life about those rights will enhance the accountability and transparency of the operations of the Public Guardian in her appointment in this particular case.
It has been a relatively common practice of the Board to require that guardians or administrators consult with family members before making important decisions, for example moving an elderly person to a nursing home. The decisions of the Public Guardian in her appointment in this particular case could be significantly undermined if communications with key persons had not been effected. Consulting with key persons is an important part of a guardian’s work in ensuring that decisions are well founded and able to be put into effect in the represented person’s best interests.
In any event, the Direction does not prescribe who the guardian determines is a ‘key person’ and thus who will be consulted. The Board considers that Direction 3 is consistent with the role of the Public Guardian in her appointment in this particular case and the powers of the Board.

Direction 4 - Relationship between the guardian and service providers

Direction 4 requires that the guardian provides information to service providers involved with the represented person and consults those persons in decision making on the represented person’s behalf. The Public Guardian has the same objection to Direction 4 as Direction 3. As noted above, historically a lack of information to service providers has undermined the efficacy of the guardianship appointment when treatment decisions are imposed by medical practitioners without the authority of the guardian. Direction 4 ensures that the Public Guardian in her appointment in this particular case provides standardised introductory information to all relevant service providers to outline the nature of the guardianship relationship and is also reflective of the National Standards.
The guardian will need to determine the relevant service providers for the represented person. Like key persons in the represented person’s life, service providers can assist to advocate for the represented person in the guardianship relationship and if they are sufficiently informed of the avenues to do so, they can bring a greater level of accountability and transparency to the guardianship relationship. Direction 4 is consistent with the duties of the Public Guardian in her appointment in this particular case to act in the best interests of the represented person.

Direction 5 - Role of a guardian in giving consent to medical or dental treatment

Direction 5 provides guidance about a guardian’s role and actions in consenting to medical or dental treatment in line with the procedures set out in the Act and the Regulations. In the response to draft Standard Directions dated 7 September 2010 the guardian responded:
“The Act does not dictate the manner or form in which a guardian should consent to the provision of health care. Whilst it is generally my practice to ensure that consent is confirmed in writing, with respect, I do not agree that a direction can be given requiring that to be done.” (Emphasis added.)
The President subsequently informed the Public Guardian of the contents of Regulation 8 of the Guardianship and Administration Regulations 2008 from which Direction 5.2 was drafted.
In her current submission, the Public Guardian contends that the Board should not give Direction 5.2 requiring that consent be provided in writing, because it is already provided for in legislation. In noting in her response dated 7 September 2010 that consent is generally given in writing, the Public Guardian admitted that substitute consent to medical treatment is not consistently given in writing. This alone gives the Board sufficient reason to warrant the giving of a direction. Additionally, Direction 5.1 upon which she makes no comment is also a ‘direct lift’ from Part 6 of the Act, yet it has not attracted the same criticism from the Public Guardian.
In other Directions, the Public Guardian has stated that the directions are too broad and go beyond the provisions of the Act and are therefore unlawful. In this matter, she argues that the direction is too similar to the provisions of the Act and is therefore not capable of being given. This inconsistency makes it difficult to follow a line of argument from the Public Guardian, apart from a deduction that she simply does not want the directions imposed upon her office in her appointment in this particular case.

Direction 6 - Internal review and support

Direction 6, requiring that the guardian shall present the case of the represented person on a six monthly basis for review in (i) individual supervision by the Public Guardian or (ii) discussion in a professional team meeting, has been interpreted by the Public Guardian as a direction about how the Public Guardian should manage her own internal processes. From the Board’s perspective, its intent is to ensure the proper decision making processes on behalf of the represented person in this particular case.
Unlike private persons who are appointed as a guardian for one close friend or relative with whom they have a personal relationship, the Public Guardian’s delegates may be managing over 50 cases at a time relating to persons with whom they have only a professional relationship. As the Board saw in the case of NN, some of these cases can be overlooked perhaps when other represented persons may be in crisis or more demanding for various reasons.
An inactive guardianship may be an excessively restrictive guardianship. So whereas a private person appointed as a guardian will be monitoring their decisions and relationship with a represented person on an intimate and regular basis, a Public Guardian is not motivated by the same imperatives. Therefore a prompt by the Board to ensure that the represented person’s matter is reviewed with another officer is directly related to ensuring that the Public Guardian in her appointment in this particular case is making decisions that are subject to discussion (increasing accountability), reviewed periodically to ensure that the guardian’s judgment is sound (promoting best interests) and that the order is still actively required (promoting the least restrictive alternative). All of these outcomes are consistent with the duties of the Public Guardian in her appointment in this particular case and the principles of the Act in the Board’s view.

Direction 7 - Reporting and applying to the Board

Direction 7 relates to the manner in which the guardian reports to the Board or applies to the Board for a review or advice and directions. The Public Guardian does not take issue with Direction 7 except that she believes that Direction 7.2 attempts to restrict the power of a guardian to apply for advice and direction. The Board agrees that a requirement to seek internal advice would provide a fetter upon the ability of a guardian to seek advice and direction from the Board. Therefore Direction 7.2 of the Standard Directions will be amended to read:
“7.2 Where a guardian believes that the scope of the order appointing the guardian is uncertain, or the guardian requires direction about the exercise of the power, the guardian shall apply to the Board for advice and direction noting:

(i) A history of the actions taken by the guardian under the order,
(ii) What decisions have been proposed to the guardian,
(iii) Why the guardian believes that the order requires additional advice and direction from the Board, and
(iv) A recommendation as to the nature of the advice and direction and the outcomes sought from the Board.
Where an application is made for the addition of powers under section 28 of the Act, a guardian should also include in the application information about why appointment without such powers would not be effective and for what period of time or until what event(s) such powers will be required.”

Paragraph 7.3(b) will be deleted from the Standard Directions for the same reasons as given in the paragraph above. The Public Guardian states that Direction 7.3 attempts to limit the circumstances in which a guardian can seek a review of a guardianship order. Direction 7.3 does not limit the guardian from making an application to review an order in other circumstances, it merely specifies the evidence that ought to be furnished to the Board if the guardian seeks to review the order on those specified grounds.
Accordingly, with the amendment of Direction 7.2 and the deletion of Direction 7.3(b), the Board believes that Direction 7 is consistent with the powers of the Board to make and the functions of the Public Guardian in her appointment in this particular case to perform.

Various directions about record keeping:

The Standard Directions require the guardian to keep accurate and detailed records of discussions and decisions. On occasions the Board has asked the delegates of the Public Guardian to produce file notes in relation to a proceeding and been informed that the delegates have not kept file notes. It is difficult to accept as satisfactory, that an officer in a public service empowered to make decisions on behalf of vulnerable persons with disabilities is not consistently keeping contemporaneous and accurate file notes.
The importance of accurate record keeping is described by the Australian Public Service Commission when it states:
“Good recordkeeping is a necessary element of good governance. Good recordkeeping supports efficiency and accountability through the creation, management and retention of meaningful, accurate, reliable, accessible and durable records of important government activities and decisions.
Good records are necessary for government to keep track of what it has done, so that future activities can be examined on the basis of a comprehensive and accurate knowledge of what has occurred and what has been decided in the past.
Retaining the corporate memory of government, in the form of records, helps public servants perform their duties efficiently, effectively and ethically, and ensures that we maintain audit trails necessary for public accountability and transparency.
Good recordkeeping also helps to protect the legal, financial and other interests of government. Ultimately, good recordkeeping saves the government, and hence the community, money. Good records are vital corporate and national assets and good recordkeeping is essential for a useful, reliable and durable historical record.”[8]
[8] Note for File – A Report on Recordkeeping in the Australian Public Service, Australian Public Service Commission, Commonwealth of Australia 2007, Chapter 3
In the context of guardianship, some examples of why records should be kept are:
·A represented person may recover capacity and seek information on why and how decisions were made on his or her behalf during a period of guardianship.
·A change in staffing of the Office may require that a new guardian is required to quickly familiarise himself or herself with the represented persons needs and wishes.
·A represented person or their representative may wish to review the guardianship order and seek copies of records for the purpose of their case.
·In a medical negligence case, it may be necessary to prove what information the guardian was provided before he or she consented to medical treatment.
Keeping accurate records of a guardian’s discussions and decisions, in the Board’s view, is an integral part of acting in the best interests of the person. A Public Guardian ought to keep and maintain records as an inherent part of providing a public service and this is legislated for in section 82 of the Act. The fact that: (i) there have been admissions that records have not consistently been kept in the past and (ii) that the Public Guardian should object to a requirement to keep records, raises many concerns for the Board about whether appointing the Public Guardian will be an appointment in the best interests of the represented person in this case. To ensure that records are kept, the Board is of the view that recordkeeping directions must be given to the Public Guardian in her appointment in this particular case.

Why does the Board consider that imposing Standard Directions is necessary in this case?

The represented person is 60 years of age and has suffered the effects of chronic alcoholism for most of her life. She lives alone and her most consistent contact with the outside world is with a paid gardener. According to reports she occupies only one room of her house and lives in squalor within that room. She is reported to have spent days on end sitting in a lounge chair, not even leaving that room to urinate or defecate. A taxi driver keeps her supplied in alcohol and groceries. She has had numerous admissions to hospital. As a result of Police having to be called on numerous occasions to force entry to her premises when support services cannot rouse her, Police have now indicated that they will not respond in future to calls of that nature. She has serious physical health problems. She frequently refuses services from health care providers and is at risk of being admitted to full time care if she cannot reliably receive services at home. Few people in Tasmania are more isolated and more vulnerable than the represented person.
At the same time, she is a highly articulate woman who has clear views and wishes on certain matters, such as a fervent desire to remain living in her home with the greatest possible privacy.
A number of aspects of this case are similar to the circumstances of NN when she was first made the subject of a guardianship order. Such a vulnerable person needs an active guardian who will be accountable to the Board and the represented person for his or her decisions.
This is a matter where, of necessity, the guardian has been charged with an ability to change the represented person’s place of residence, allow persons to enter her home to provide care and to consent to health care that she may refuse. It is an enormous power to give one individual or statutory office over another person. The Board, noting the above concerns about past practice, needs assurance that certain basic measures will be taken to ascertain her wishes in person, to advocate for the least restrictive alternatives and to promote her best interests. The Board is satisfied that the appropriate means to do so is in the imposition of the Standard Directions as amended in this particular case.
Accordingly the Board will now amend the order, pursuant to powers in section 31(4) of the Act to read as follows:
1.   That the Public Guardian be appointed as the represented person’s guardian.
2.   That the powers and duties of the guardian are limited to decisions concerning:
i.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,
ii.where the represented person is to live either permanently or temporarily,
iii.provision of services including home maintenance, and
iv.providing access to the represented person’s premises.
3.   That the Standard Directions to a Guardian issued 2 November 2010 shall apply with respect to this order.
4.   That the order remains in effect to 23 September 2013.

DATED this 2 November 2010

Anita Smith Elizabeth Love William Downie

PRESIDENT MEMBER MEMBER

This decision will be de-identified and published as: KKQ (Guardianship Directions) [2010] TASGAB 21

Anita Smith

PRESIDENT

Standard Directions to a Guardian

This document constitutes the Standard Directions to a Guardian. Where an order of the Guardianship and Administration Board refers to the “Standard Directions to a Guardian”, the directions in this document apply to that appointment and a guardian is expected, by the Guardianship and Administration Board, to observe these directions.

Contents:

Standard Directions to a Guardian

Contents:

Introduction

The Legislation

The Standard Directions

Definitions
1.      Relationship between the represented person and the guardian
2.      Advocacy on behalf of the represented person
3.      Relationship between the guardian and key persons in the represented person’s life
4.      Relationship between the guardian and service providers
5.      Role of a guardian in giving consent to medical or dental treatment
6.      Internal review and support
7.      Reporting and applying to the Board

Introduction

Part 4 of the Guardianship and Administration Act 1995 (‘the Act’) provides for the appointment of a guardian for a person with a disability to make personal decisions on behalf of that person. Appointments are made by the Guardianship and Administration Board (‘the Board’) after it has heard an application. At the conclusion of a hearing, the Board will produce an order which sets out the terms of a guardian’s powers.

The Board may appoint the Public Guardian as a guardian for a person. These directions apply to the Public Guardian and staff or delegates of that office.

Further information about the appointment and role of a guardian is available in the Private Guardian’s Handbook Information for Guardians Appointed by the Guardianship and Administration Board of Tasmania July 2009 which is available on the Board’s website.[9]

[9]

When the Board makes a guardianship order it may make the order subject to such terms, conditions and restrictions as the Board considers necessary.[10] Additionally the Board may, of its own motion, direct or offer advice to a guardian in respect of any matter.[11] A direction is binding upon a guardian.[12] These standard directions are imposed as a direction to a guardian.

[10] Section 20(1) of the Guardianship and Administration Act 1995 (Tas)

[11] Section 31(4) of the Guardianship and Administration Act 1995 (Tas)

[12] Section 31(5) of the Guardianship and Administration Act 1995 (Tas)

These directions have been developed to reflect the requirements in the Act as well as the National Standards of Public Guardianship as adopted by the Australian Guardianship and Administration Council on 7 October 2009.[13]

[13] For more information see:

If the standard directions are updated from time to time, the directions that apply to the guardian are the standard directions as at the time of the order. The most recent date of issue for the directions will be recorded in the header of this document.

The Legislation

A guardian must observe the principles set out in the legislation, which means that when the guardian is acting under the powers of the order, the guardian must perform his or her duties 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,
(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.[14]
[14] Section 6 of the Guardianship and Administration Act 1995 (Tas)

A guardian appointed by the Board as a full guardian has all the powers and duties which the full guardian would have in Tasmania if he or she was a parent and the represented person his or her child[15]. In particular these powers include the power[16]:

[15] Section 25(1) of the Guardianship and Administration Act 1995 (Tas)

[16] Section 25(2) of the Guardianship and Administration Act 1995 (Tas)

(a) to decide where the represented person is to live, whether permanently or temporarily,
(b) to decide with whom the represented person is to live,
(c) to decide whether the represented person should or should not be permitted to work and if so, the nature or type of work; for whom and any related matters,
(d) to restrict visits to a represented person to such extent as may be necessary in his or her best interests and to prohibit visits by any person if the guardian reasonably believes that they would have an adverse effect on the represented person, and
(e) consent to any health care (except special treatment[17]) that is in the best interests of the represented person and to refuse or withdraw consent to any such treatment.
[17] See Part 6 of the Guardianship and Administration Act 1995 (Tas)

Where a decision is made by a guardian, the decision has effect as if it had been made by the represented person and the represented person had the legal capacity to do so.[18]

[18] Section 25(3) and 26(2) of the Guardianship and Administration Act 1995 (Tas)

A guardian may, on behalf of a represented person, sign documents and do all such things as are necessary to give effect to any power or duty vested in the guardian.[19]

[19] Section 25(4) and 26(3) of the Guardianship and Administration Act 1995 (Tas)

Where a guardian’s powers are limited to certain decision making areas, the guardian’s authority is limited to those specified areas only.[20]

[20] Section 26 of the Guardianship and Administration Act 1995 (Tas)

In addition to describing the types of decisions a guardian may make and the principles he or she must observe, the Act provides guidance about the manner in which a guardian must exercise his or her authority:[21]

[21] Section 27 of the Guardianship and Administration Act 1995 (Tas)

(1) A guardian must act at all times in the best interests of the person under guardianship.
(2) Without limiting subsection (1), a guardian acts in the best interests of a person under guardianship if the guardian acts as far as possible:
(a) in consultation with that person, taking into account, as far as possible, his or her wishes,
(b) as an advocate for that person,
(c) in such a way as to encourage that person to participate as much as possible in the life of the community,
(d) in such a way as to encourage and assist that person to become capable of caring for himself or herself and of making reasonable judgements relating to his or her person, and
(e) in such a way as to protect that person from neglect, abuse or exploitation.

In certain circumstances a guardian can apply to the Board for advice and direction about the scope of his or her powers or the exercise of any power by the guardian under the guardianship order.[22]

[22] Section 31 of the Guardianship and Administration Act 1995 (Tas)

A guardian may apply for an emergency extension of an order and in circumstances of urgency the Board may make any order or give any direction considered appropriate in the circumstances.[23]

[23] Section 65(1) of the Guardianship and Administration Act 1995 (Tas)

Where an order specifically authorises the guardian to do so and the guardian has reasonable grounds to believe that the represented person is likely to suffer damage to his physical, emotional or mental heath or wellbeing unless immediate action is taken, the guardian may be empowered to work with the Commissioner of Police (or his delegate) and/or the Secretary of the Department of Health and Human Services (or his delegate) to take certain measures or actions to ensure that the represented person complies with any decision of the guardian in the exercise of the powers and duties conferred by the order.[24] Such actions may include:

[24] Section 28 of the Guardianship and Administration Act 1995 (Tas)

(i)Remove the represented person from any premises that the Public Guardian deems to present a risk to his physical, emotional or mental heath and wellbeing.
(ii)Convey the represented person to premises that the Public Guardian deems to be safe and appropriate to promote his physical, emotional or mental heath and wellbeing.
(iii)To use such reasonable force as is necessary to effect the guardian’s purpose, including entry to the premises where the represented person may be.

These coercive powers are only provided to a guardian in exceptional circumstances and are expected to be used rarely.

The guardian must provide a written report to the Board once in every 12 months of appointment. The report must detail the circumstances of the represented person and any other details as required by the Board.[25]

[25] Section 66 of the Guardianship and Administration Act 1995 (Tas)

The Standard Directions

Definitions

In these Standard Directions:

A “guardian” in these directions means the Public Guardian and the Deputy Public Guardian as appointed pursuant to section 14 of the Guardianship and Administration Act 1995, staff of the Public Guardian appointed pursuant to section 15 of the Act and persons to whom functions of the Public Guardian have been delegated pursuant to section 18 of the Act.

A “record” refers to a written (or electronic) file note or document which will include:

The date and approximate time of the event being recorded,
The participants in the event,
Where the event took place,
If all participants were not in the same place, why a face to face meeting was not possible and the means by which communication was conducted,
Any wishes expressed by the represented person during the event,
The substance of any communications relevant to the discharge of the guardian’s duties, and
The details of any decision made by the guardian in the exercise of his or her powers or duties and the reasons for that decision.

A “service provider” is a person or agency who provides assistance, support or advice to the represented person, including Government and non-Government agencies, medical and dental practitioners or any person engaged to provide support to the represented person in some field that is relevant to the scope of the guardian’s authority.

A “visit” means a face-to-face or in-person visit.

Relationship between the represented person and the guardian

1.1 The guardian is responsible for the establishment and maintenance of his or her relationship with the represented person.

1.2 As soon as possible after appointment, the guardian shall visit the represented person to explain the making of the order and the relationship between the guardian and the represented person.

(a)Where it is not possible to visit the represented person within 48 hours after appointment, the guardian shall, if the person is able to use a telephone, speak directly to the person by telephone and visit as soon as possible thereafter but not later than 5 calendar days.
(b)The guardian shall not make any decisions on the represented person’s behalf until the guardian has visited the represented person unless there are circumstances of urgency that require an immediate decision to preserve the safety and security of the represented person.
(c)The guardian shall keep a record of the initial meeting with the represented person and the views expressed by the represented person.

1.3 As soon as possible after appointment, the guardian shall furnish the represented person with the following written information:

(a)How to contact the guardian.
(b)The role of the guardian and the Office of the Public Guardian.
(c)The principles of the legislation.
(d)The authority of the guardian in relation to the represented person.
(e)The customer service standards that the represented person may expect from the guardian.
(f)The right of the represented person to an interpreter in discussions with a guardian and how to request an interpreter in those discussions.
(g)How to request written reasons for a guardian’s decision.
(h)How to make a complaint about a guardian’s decision or to have a guardian’s decision reviewed.
(i)How to apply for a review of the order.
(j)Other complaints processes (e.g. Ombudsman, Health Care Complaints, Anti-Discrimination Commissioner etc.).
(k)The ability to request records under the Right to Information Act 2009 and relevant provisions.

The information provided shall be made available in appropriate formats (large print, Braille, audio etc.) on request to ensure that it is accessible to the represented person. Where the represented person is illiterate, in addition to providing written information, such information shall be explained to them in terms that he or she may understand.

1.4 In the initial assessment, and all subsequent attendances, the guardian shall consider whether the represented person is safe and whether they have recently experienced abuse, exploitation or neglect. If there is a reasonable suspicion of any of the above, the guardian shall take appropriate action or refer for investigation by appropriate authorities.

1.5 The guardian shall visit the represented person at least once in every year of appointment. The guardian shall keep in regular contact between visits to facilitate consultation with the represented person on significant decisions and giving effect to their wishes where possible.

1.6 If the represented person objects to a proposed decision, the guardian shall make reasonable attempts to ascertain the reasons for the objection and consider ways to achieve their wishes or resolve the dispute if possible.

1.7 As soon as possible after making a decision on the represented person’s behalf, the guardian shall communicate decisions to the represented person in a manner that is meaningful to him or her.

1.8 The guardian will provide written reasons for any decision on the request of the represented person.

1.9 The guardian shall keep a record of all discussions or attempted discussions with the represented person.

1.10 The guardian shall consult with the represented person as far as possible to ascertain their views before presenting an annual report to the Board or presenting a report to a review hearing of the Board.

Advocacy on behalf of the represented person

2.1 The guardian will advocate, within the scope of the guardian’s authority, to ensure that the represented person has appropriate accommodation, health care, support services and assistance to participate in the community.

2.2 The guardian will advocate, within the scope of the guardian’s authority, for the options that best promote quality of life and opportunity for the represented person.

2.3 The guardian will consider and advocate, within the scope of the guardian’s authority, for the least restrictive alternative that meets the needs of the represented person.

Relationship between the guardian and key persons in the represented person’s life

3.1 The guardian is responsible for the establishment and maintenance of his or her relationship with key persons in the represented person’s life.

3.2 As soon as possible after appointment, the guardian shall furnish key persons in the represented person’s life with the following written information:

(a)How to contact the guardian.
(b)The role of the guardian and the Office of the Public Guardian.
(c)The principles of the legislation.
(d)The scope of the authority of the guardian in relation to the represented person.
(e)The customer service standards that they may expect from the guardian.
(f)The right to an interpreter in discussions with a guardian and how to request an interpreter in those discussions.
(g)How to request written reasons for a guardian’s decision.
(h)How to make a complaint about a guardian’s decision or to have a guardian’s decision reviewed.
(i)How to apply for a review of the order.
(j)Other complaints processes (e.g. Ombudsman, Health Care Complaints, Anti-Discrimination Commissioner etc.).
(k)The ability to request records under the Right to Information Act 2009 and relevant provisions.

The information provided shall be made available in appropriate formats (large print, Braille, audio, email, facsimile etc.) on request to ensure that it is accessible to the person. Where the person is illiterate, in addition to providing written information such information shall be explained to them in terms that he or she may understand.

3.3 The guardian shall seek and consider the views of key persons in the represented person’s life in regard to any proposed significant decisions.

3.4 If a key person in the represented person’s life objects to a decision or proposed decision, the guardian shall make reasonable attempts to ascertain, consider and take into account the reasons for the objection.

3.5 As soon as possible after making a decision on the represented person’s behalf, the guardian shall communicate the decision to the key persons in the represented person’s life in a manner that is meaningful to those persons.

3.6 The guardian will provide written reasons for any decision on the request of the key person in the represented person’s life. Such reasons will be consistent with the represented person’s right to privacy. Where reasons or parts of reasons are withheld to protect the privacy of the represented person, the guardian must inform the key persons of that determination.

3.7 The guardian shall make and keep a record of all discussions or attempted discussions with key persons in the represented person’s life.

3.8 The guardian shall consult with key persons in the represented person to ascertain their views before presenting an annual report to the Board or presenting a report to a review hearing of the Board.

Relationship between the guardian and service providers

4.1 The guardian is responsible for ensuring that service providers are provided with information about the terms of the guardianship order and the authority vested in the guardian to give substitute consent on behalf of the represented person.

4.2 Information referred to in paragraph 4.1 shall be provided in writing and include:

(a)Contact details for the guardian.
(b)Information about the circumstances where it is required that the service provider consult with the guardian before acting.
(c)A request to provide information that would be useful to a guardian in making future decisions, and
(d)Information outlining possible consequences of acting without the consent of a guardian or withholding information from a guardian.

4.3 The guardian shall seek and consider the views of relevant service providers as may be relevant to the proposed decision.

4.4 The guardian shall assess whether all reasonable options have been presented by service providers and promote alternative options where they may be preferable.

4.5 The guardian shall consider the strengths and weakness of advice from service providers, and seek alternative opinions, including alternative medical opinions, where appropriate.

4.6 The guardian shall make and keep a record of all discussions and attempted discussions with service providers.

4.7 The guardian shall consult with all relevant service providers to ascertain their views before presenting an annual report to the Board or presenting a report to a review hearing of the Board.

Role of a guardian in giving consent to medical or dental treatment

5.1 Before a guardian gives substitute consent for medical or dental treatment on behalf of a represented person, the guardian shall make enquiries of the treating practitioner about:

(a) The consequences to the represented person if the proposed treatment is not carried out,
(b) Any alternative treatment available to the represented person,
(c) The nature and degree of any significant risks associated with the proposed treatment or any alternative treatment, and
(d) Whether the treatment is to be carried out only to promote and maintain the health and wellbeing of the represented person.

The guardian shall keep a record of the answers to those enquiries and, insofar as is possible, communicate them to the represented person.

5.2 Where a guardian gives substitute consent for medical or dental treatment on behalf of a represented person, the guardian shall provide such consent in writing. The consent of the guardian may be given orally if it is not practicable to give it in writing owing to the need to provide the treatment urgently, but the guardian must give written confirmation of the consent as soon as practicable to the registered practitioner concerned.

Internal review and support

6.1 The guardian shall present the case of the represented person on a six monthly basis for review in (i) individual supervision by the Public Guardian or (ii) discussion in a professional team meeting.

6.2 The outcomes of six monthly reviews shall be recorded on the represented person’s file, noting whether it was reviewed in individual supervision or a professional team meeting, the issues discussed and recommendations arising from the review.

Reporting and applying to the Board

7.1 The guardian shall provide an annual report to the Board according to the approved Annual Report by a Guardian pro forma.

7.2 Where a guardian believes that the scope of the order appointing the guardian is uncertain, or the guardian requires direction about the exercise of the power, the guardian shall:

(a)First seek individual supervision within the Office of the Public Guardian regarding the need for an application for advice and direction from the Board.
(b)Where the matter cannot be resolved within the Office of the Public Guardian apply to the Board for advice and direction noting:
(i)A history of the actions taken by the guardian under the order,
(ii)What decisions have been proposed to the guardian,
(iii)Why the guardian believes that the order requires additional advice and direction from the Board, and
(iv)A recommendation as to the nature of the advice and direction and the outcomes sought from the Board.

(c)Where an application is made for the addition of powers under section 28 of the Act, a guardian should also include in the application information about why appointment without such powers would not be effective and for what period of time such powers will be required.

7.3 Where a guardian forms the view that the order is not working in the best interests of the represented person or no longer represents the least restrictive alternative for the represented person, the guardian shall make an application for the order be extended (whether as an emergency or otherwise), amended or revoked.

(a)    Except in an emergency, before making such application the guardian shall consult with the represented person, key persons in the represented person’s life and all relevant service providers about the suitability of the order or a review of the order.
(b)   Except in an emergency, the guardian shall seek individual supervision or consult guidelines within the Office of the Public Guardian regarding the appropriateness of an application to review the order.
(c)    Such application should specify:
(i)A history of the actions taken by the guardian under the order,
(ii)What decisions have been proposed to the guardian,
(iii)Why the guardian believes that the order needs to be extended(whether as an emergency or otherwise), amended or revoked,
(iv)The views of the represented person, key persons in the represented person’s life and service providers (if available in an emergency), and
(v)A recommendation regarding the continuing need for a guardianship order, a need for extension (whether as an emergency or otherwise), amendment or revocation including the particular terms of a recommended order.
(d)Where an application is made for the addition of powers under section 28 of the Act, a guardian should also include in the application information about why appointment without such powers would not be effective and for what period of time such powers will be required.

7.4 When presenting evidence to a hearing to provide advice and direction or to review the order the guardian shall make available to the Board such records of discussions as may assist the Board.

NATIONAL STANDARDS OF PUBLIC GUARDIANSHIP

Introduction

The National Standards of Public Guardianship were initially endorsed by the Australian Guardianship and Administration Committee in 2001. The standards provide the minimum expectations of guardianship staff in making substitute decisions on behalf of people with decision-making disabilities whose guardian is the Public Guardian/Advocate.

The standards have provided a baseline benchmark and framework that has informed the development of standards by each jurisdiction.

Preamble

The ratification by Australia of the United Nations Convention on the Rights of Persons with Disabilities on 17 July 2008 has informed the 2009 review of the minimum standards for public guardianship.

The convention promotes, protects and ensures the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities. The convention defines these rights in each area of life and includes, amongst others, access to justice, freedom of expression, independent life in the community, education, work, standard of living, health care, rehabilitation, and participation in political and public life.

In particular Article 12 Equal recognition before the law provides that

Persons with disabilities have the right to recognition as persons before the law
Persons with disabilities enjoy legal capacity on equal basis with others in all aspects of their lives
Persons with disabilities access the support they may require in exercising their legal capacity
All measures that relate to the exercise of legal capacity are safeguarded to prevent abuse; they respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest possible time and are subject to regular review by a competent, independent and impartial authority or judicial body.

Accordingly for all people there is a presumption of capacity and all possible efforts should be made to assist a person exercise their own capacity. When a person does not have full legal capacity, such incapacity is decision specific, and therefore a person’s decision-making capacity needs to be considered for each and every decision.

The Standards

The following nine standards set out the principles for a guardian to observe when making decisions on behalf of a person. The standards complement policies, practice standards, and procedures as well complaint and review mechanisms for people affected by the decisions, and a range of government requirements relating to areas such as appropriate professional behaviour, privacy and confidentiality, conflict of interest and ethical work practices. The standards are:

·     Provide information
·     Seek views
·     Advocacy
·     Protection
·     Make decisions
·     Record information
·     Participate in guardianship reviews
·     Professional development
·     Privacy and confidentiality

Provide Information

o Agencies with a statutory mandate of guardianship decision-making will ensure information about their vision or mission, their services and the legislative and ethical principles and policies underlying their services are accessible to all consumers, stakeholders and staff.

o Staff making guardianship decisions will ensure that:

Information is made available to the represented person and other key people in their life about

·     The role of the office
·     The principles of the legislation
·     The authority of the guardian in relation to the represented person
·     Customer services standards
·     Appointment of an interpreter
·     How to request reasons for a decision
·     How to make a complaint or have a decision reviewed
·     How to apply for a review of an Order
·     Other complaints processes
·     Freedom of Information provisions

Information about substitute consent and the guardian’s authority in respect of the represented person is provided to all relevant service providers, including medical and dental practitioners providing services to the represented person

Information is made available on request in appropriate formats to ensure it is accessible.

Seek Views

o Staff making guardianship decisions will:

Seek and consider the views of the represented person, giving effect to the wishes of the represented person where possible

Make personal contact with the represented person a minimum of one visit each year

Seek and consider the views of key parties involved with the represented person in regard to any proposed significant decisions
Seek and consider the views of relevant medical and other professionals, as the proposed decision requires

Consider the strengths and weaknesses of advice from service providers, and if there is reason to consider the advice inadequate in some way, seek a second opinion on behalf of the represented person.

If the represented person objects to the proposed decision, make reasonable attempts to ascertain the reasons for their objection and consider ways to achieve their wishes or resolve the dispute if possible

If any key person objects to the proposed decision, make reasonable attempts to ascertain the reasons for their objection and consider these prior to making a decision.

Consider and advocate for the least restrictive alternative that meets the needs of the represented person.
Advocacy

o Represented persons have a right to access housing or accommodation, health care, support services, and assistance to participate in the community.

o Staff making guardianship decisions will:

Assess whether all options have been presented to the decision maker by service providers, and seek to recognise when a preferable option has not been presented.

Make all possible attempts to advocate for the best option so that a decision can be made between meaningful options that improve both quality of life and opportunity for the represented person.
Protection

o Guardianship can service an adult protection function for represented people at risk of harm by third parties. People with a decision making disability may be vulnerable to physical, sexual, emotional and financial abuse, as well as exploitation and neglect.

o Staff making guardianship decisions will:

In both the initial assessment and subsequent reviews, consider whether a person is safe, and if they have experienced abuse, exploitation and/or neglect.

Further investigate and take action including the referral of the represented person to an appropriate authority where there is any reasonable suspicion that a represented person has experienced abuse, exploitation and/or neglect, taking into account their wishes.
Make Decisions

o Staff making guardianship decisions will:

Make decisions according to the legislative provisions and principles and the authority of the current Order

Make decisions according to the authority delegated to them

Make decisions following agency policy and procedures

Communicate decisions to the represented person and key parties in a manner meaningful to the person

Provide written reasons for decision on request of the represented person or a key party

Review their decision making on a regular basis with their manager
Record Information

o Staff making guardianship decisions will:

Record guardianship decisions including the views of the represented person and other relevant parties, timeframes, conditions and the reasons for them

Record significant information obtained

Record significant details of contacts made and decisions taken.
Participate in Guardianship Reviews

o Staff participating in guardianship reviews will:

Request a review of the current Order by the Board, Tribunal or Court if at any time there is a need to extend, review or revoke the powers given under the Order or where the Order is not working in the best interests of the represented person

Recommend continuation of the Order for the shortest time possible and only when there is evidence that the represented person lacks legal capacity and needs decisions to be made for them in those areas

Consult with the represented person as far as possible to ascertain their views

Consult with relevant key parties and professionals and include their comments in the report

Provide a written or verbal report detailing their assessment and recommendation regarding the continuing need for a guardianship order to the Board, Tribunal or Court.

Professional Development

o Agencies with the statutory mandate of guardianship decision making will ensure:

All staff have access to individual supervision, support and guidance in the performance of their guardianship role

The case of each represented person will be reviewed on a six monthly basis either in individual supervision or in professional team meetings

All staff have access to professional development opportunities in every year of their employment.

o Staff making guardianship decisions will:

Engage in meetings on a regular basis with their manager or colleagues to discuss issues in their decision making and professional development needs

Undertake continuing professional development in areas relevant to their role.

Privacy and Confidentiality

o Agencies with the statutory mandate of guardianship decision making will:

Develop policies and procedures that protect the privacy and confidentiality of the represented persons and the key people in their lives and comply with legislative requirements.

o All staff making guardianship decisions will ensure:

That only information relevant to the performance of their statutory authority and in the best interests of the represented person is released

That they comply with other relevant government requirements including Codes of Conduct.

7 October 2009