MEN – Application by the Public Trustee for a review of Administration Order, Application by the Public Guardian for a Review of Guardianship Order
[2009] TASGAB 22
•19 October 2009
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
MEN – Application by the Public Trustee for a review of Administration Order, Application by the Public Guardian for a Review of Guardianship Order
Neutral citation: MEN (Guardianship) [2009] TASGAB 22
REASONS FOR DECISION
Anita Smith (President)
Guardianship and administration – review of guardianship and administration – represented person in circumstances of neglect – guardian not acted to remove person from circumstances of neglect – criticism of Public Guardian’s inactivity – Public Guardian as guardian of ‘last resort’
Guardianship and Administration Act 1995 s 20,27, 51, 67
MEN (“the represented person”) became the subject of an administration order appointing the Public Trustee and a guardianship order appointing the Public Guardian on 21 September 2006. Those orders expired pursuant to sections 24 and 52 of the Act. On 6 August 2009 the Public Trustee applied for a review of the administration order and 28 August 2009 the Public Guardian applied for a review of the guardianship order.
At the initial hearing on 21 September 2006, in addition to being satisfied that the application met the tests in sections 20 and 51 of the Act, the Board was extremely concerned at multiple indicia of abuse and neglect that surrounded the represented person. The represented person appeared to have no contact with persons who were not members of her family, almost no excursions from her home, an inappropriate level of medical care and a lack of access to funds.
The Board was concerned at the initial hearing that the represented person’s brother, EM, who asserted a role as her main carer, had grossly inadequate skills to care for her. The Board also found that he restricted her from necessary rehabilitation and social activities. Because this was an established family pattern, other members of the represented person’s family did not appear concerned about her extreme isolation and deprivation. Upon review, unfortunately, despite plenary guardianship and administration orders, it appeared to the Board that very little improvement had occurred in the represented person’s life.
The review hearing was convened with regard to both applications on 17 September 2009. The hearing was attended by EM and his representative, Robert Saunders, the Deputy Public Guardian, representatives of the Public Trustee and the Board’s Investigation and Liaison Officer.
At the review hearing on 17 September 2009, the Board was satisfied on the basis of a report by Dr Harkness that the represented person remains a person with an intellectual disability and remains incapable of making reasonable decisions in relation to her person and circumstances as well as her finances.
In assessing the need for an administrator and a guardian, the Board had reference to the annual reports submitted by the administrator and the guardian during the order and the discussion at the hearing.
The Public Trustee’s Annual Reports:
In its first year of appointment the Public Trustee redirected all relevant accounts to itself and established a relationship with the represented person’s family members for contributions towards household expenses. The Trustee expressed concern at the absence of requests for money for items such as clothing, entertainment or travel. During the period of administration, the Public Trustee wrote to the represented person’s brother, EN on occasions seeking to pay weekly allowances for expenses for her, without response.
Is the represented person in need of an administrator?
At the time of making the initial order the represented person did not have a separate bank account and her brother mixed her money with his own. The Public Trustee now has just under $30,000.00 invested on behalf of the represented person and is only able to pay her share of rental and electricity bills. In many ways the concerns that the Board had, that the represented person’s money was not being spent in ways that benefited her, remain. However the Board is satisfied that the Public Trustee has done all that would be expected of an administrator to protect the represented person’s money and to make it available if there should be an occasion where funds were requested.
It was evident at the hearing that EM’s attitude towards his sister accessing the community had not changed and that if management of money should revert to the family, the represented person would continue to have limited rehabilitation, stimulation and socialisation. EM had changed his view to the extent that he supported the reappointment of the Public Trustee as administrator. The Board is satisfied that the represented person remains in need of an administrator and that the Public Trustee remains the appropriate administrator.
The Public Guardian’s Annual Reports:
On 5 October 2007 the Deputy Public Guardian reported to the Board that, because of barriers established by the represented person’s family, she had only achieved access to the represented person on one occasion during the first year of the appointment. She had not made any decisions to alter the represented person’s living arrangements.
The Deputy Public Guardian also reported that a Disability Services Service Co-ordinator and an Occupational Therapist who had attempted to gain access to the represented person to measure her for a new wheelchair had also failed. The Public Guardian reported that:
“Although MEN was receiving the [epilepsy] medication prescribed, it appeared the prescriptions were being written without having seen MEN for some time.”
The 2007 report also revealed that the represented person had lost an entitlement to day support because she had not accessed that support for a long time partly because of the cost of transport. The Deputy Public Guardian concluded:
“I cannot say that it would be in MEN’s best interests to have her removed to somewhere else. With this in mind and the lack of long-term accommodation options, it seems to be at least she has a roof over her head and is being cared for to the best of this part of the family’s ability.”
On 19 September 2009, the Deputy Public Guardian simply reported:
“Once again, I have not had access to MEN.” and then concluded:
“I do not believe having MEN under an order of any sort is of any use, given the family members with whom she lives make it extremely difficult to allow any contact and do not co operate at all. As previously reported, I am not convinced that moving MEN away from her family is in her best interest, even if there was suitable placement available.”The Board member reviewing the guardian’s annual report in 2008 suggested that the Office of Public Guardian ought to seek a review of the order if they believed it was of no use. An application form was supplied by a member of the Board’s staff but no application was made.
On 28 August 2009, the Deputy Public Guardian reported to the Board that:
“All areas of MEN’s life have been of concern for the past 3 years.”
She again reported upon the barriers to access to the represented person presented by her family. However on this occasion, the represented person had been hospitalised “in a semi conscious state, dehydrated with bed sores and possible sepsis.” In the hearing the Deputy Public Guardian also reported that she was malnourished. Apparently this was not the first time during the order that the represented person had been admitted to hospital, but it was the first time that the guardian had become aware of the hospitalisation. The guardian had given instructions that she not be discharged from hospital without consent. The guardian had asked Disability Services to locate appropriate accommodation without success. The represented person remained in the Transitional Care Unit of the Royal Hobart Hospital at the time of the hearing pending location of suitable supported accommodation.
Is the represented person in need of a guardian?
The represented person’s brother, EM, argues that he can manage her day to day care. He states that she will suffer if put into supported accommodation. His representative suggested that nursing home care frequently results in a poorer state of health than the represented person currently suffers.
It is extremely unfortunate that the represented person has been admitted to hospital in such a poor state of health. Her poor state of health indicates to the Board that she has been neglected of the most basic level of care for some time and that there is insufficient support for her in her current environment. While the represented person’s family continue to assert their role as primary carer and to dominate all aspects of her care and socialisation, a need for a guardian continues.
A guardian is now required to ensure that she does not return to the environment from which she came and to consent to ongoing health care issues. Given that her brother was so hostile to the idea of her moving away from his home, there may also be a need for a guardian to ensure that she is not removed from any premises and perhaps to put limits upon visits to her. Given that the neglect of the represented person has had such global effect and her future needs are so uncertain, the need for a guardian remains global.
Noting the comments above regarding the possible need for section 28 powers to ensure compliance with the guardian’s decisions, the Board also believes that there is a need for such powers to ensure that the guardian is active rather than passive in the term of this appointment.
Is the Public Guardian the Appropriate Guardian?
It is hard to accept that a person who has been the subject of a plenary guardianship order appointing the Public Guardian for the past 3 years came to be admitted to hospital in a semi conscious state, malnourished, dehydrated with bed sores and possible sepsis.
The Deputy Public Guardian was present at the initial hearing and heard, as the Board did, that the deprivation in the represented person’s life stemmed from the xenophobic reactions that the family had to external assistance. It was reasonable to be concerned that there were no accommodation facilities available. But had an application been made for alternative accommodation early in the order, it is likely that such accommodation may have become available during the three year period avoiding the current crisis in the represented person’s health. It is difficult for the Board to understand how the Public Guardian came to and stayed with the conclusion that the represented person was better with her family than in supported accommodation.
It was certainly reasonable to make a non-confrontational initial approach to the represented person’s family in an attempt to gain trust and cooperation of the family. However, such an approach was shown to have failed quite early in the order. Despite this, no other action or approach was taken. By the third annual report, the Deputy Public Guardian admitted that “All areas of MEN’s life have been of concern for the past 3 years.” However, the reports indicated that no decisive action had been taken on account of those concerns prior to her (third) hospitalisation.
The Public Guardian was appointed with full powers. If it was necessary to remove the represented person from her home by force, an order could have been made pursuant to section 28 of the Act and the powers of the guardian could have been extended to include this by an application under section 31 for advice and direction. Alternatively the guardian could have sought approval for the controversial decision to leave the represented person in the family home under this section. When invited by the Board to review the order in 2008, this was not taken up.
The Board is unaware of whether this represented person’s issues were the subject of internal discussion or review within the Office of the Public Guardian and what factors were assessed when concluding that the represented person was best left with her family. Possible triggers for such an internal discussion and review might have been the fact that, contrary to usual practice, none of the annual reports were actually approved by the Board.
Any guardian has the following duties when appointed as a guardian:
“27. Exercise of authority by guardian
(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; and
(b) as an advocate for that person; and
(c) in such a way as to encourage that person to participate as much as possible in the life of the community; and
(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.”
With the exception of actions taken since 11 August 2009, the Board is not satisfied that the guardian has acted in the best interests of the represented person during this order, particularly with regard to the particular obligations in section 27(2)(c), (d), and (e).
Since the represented person has been hospitalised, the guardian has taken decisive action to keep her in hospital and to find accommodation elsewhere. These decisions have been in the best interests of the represented person and are consistent with the obligations in section 27. Although the Board has deep concerns about the inactivity of the Public Guardian during the majority of this order, the Public Guardian remains the guardian of ‘last resort’ and, as no other guardian has been proposed, the Public Guardian is the appropriate guardian.
To ensure that more decisive action is taken by the guardian on this occasion, the Board has added the section 28 powers into the order and given an extra direction to ensure that the represented person does not return home to live with family members without the express approval of the Board.
THE BOARD ORDERS
That The Public Trustee continue as the represented person’s administrator.
That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
That the Public Guardian continue as the represented person’s guardian.
That the powers and duties of the guardian be those conferred by Division 3 of Part 4 of the Guardianship and Administration Act 1995.
That the guardian may instruct any officer of Tasmanian Police or of the Tasmanian Ambulance Service or any employee, agent or servant of the Crown employed in the Department of Health and Human Services to take action to ensure that the represented person complies with the guardian’s decisions to:
(i)keep the represented person at that place of residence;
(ii)return the represented person to that place of residence should she leave it.
That the order remains in effect to 16 September 2012.
AND Further the guardian is directed not to consent to the represented person returning to live with members of the N family without the express approval of the Board.
Anita Smith
PRESIDENT
Statement of reasons requested: 6 October 2009
Statement of reasons delivered: 19 October 2009
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