MEN (No2) (Review Guardianship)
[2011] TASGAB 1
•4 February 2011
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
MEN – Application by EN for a Review of Guardianship Order
Neutral citation: MEN (No2) (Review Guardianship) [2011] TASGAB 1
REASONS FOR DECISION
Anita Smith (President)
Wendy Beveridge (Member)
Toni Law (Member)
Guardianship – review of guardianship – suitability of the Public Guardian for reappointment as guardian
Guardianship and Administration Act 1995 sections 21, 25, 67
MEN (Guardianship) [2009] TASGAB 22
MEN (“the represented person”) has been the subject of guardianship orders appointing the Public Guardian since 21 September 2006. MEN’s brother, EN has applied for a review of the guardianship order. The Board produced a statement of reasons for its decision on 17 September 2009 and relies upon that statement for background to this decision.
The review hearing was convened on 4 February 2011. The hearing was attended by EN and his representative, Robert Saunders, the Deputy Public Guardian, and representatives of the Public Trustee. Also in attendance were Jane Blake advocate from Advocacy Tasmania, HI, CS and MC of [XXXX] where MEN lives.
In seeking a review of the order, EN only sought to review the appointment of the Public Guardian as MEN’s guardian. It was not asserted that there had been any change to MEN’s level of capacity to make personal decisions or her need for a guardian. EN brought the application on the basis of accusations that the Public Guardian or her delegate had demonstrated inadequacy in the role and ought to be replaced on that basis.
In letters dated 23 September 2009, 6 October 2009, 11 November 2009, EN and another member of MEN’s family complained to the Board about the process and outcome of the 2009 hearing. Responses to these letters outlined the options for appeal of the Board’s decision.
On 23 February 2010 and 11 June 2010, EN wrote to the Board alleging concerns about MEN’s health. In February 2010 the Board requested that the Public Guardian provide evidence to the Board about MEN’s state of health. The Public Guardian provided a report by Dr Chamberlain on 9 August 2010. The Board sought further information from the Public Guardian on that date and again on 24 August 2010 on which date it was produced. On 24 August 2010 the Board wrote to EN noting that his concerns about a decline in health had not been supported by any of the written evidence. He was given a further opportunity to explain the grounds upon which he was seeking a review by 25 October 2010.
In response on 5 November 2010 EN submitted a draft decision by the Aged Care Complaints Investigation Scheme regarding complaint about the Nursing Home and further letter. At the Board’s request on 8 December 2010 he provided the final decision of the Aged Care Complaints Investigation Scheme and an appeal decision of the Aged Care Commissioner. These complaints related particularly to the responsibilities of the Aged care facility with regard to MEN’s nutrition and weight management.
At the hearing, EN raised two main issues about the appointment of the Public Guardian. Firstly, he alleged that his sister fell out of bed 3 or 4 times whilst she was resident at the Nursing Home. He believed this was the fault of the Public Guardian and evidence as to why he ought to be appointed in her place. He also asserted that the Deputy Public Guardian who is the delegate of the Public Guardian in this matter was not adequately attending to her duties, (such as not visiting with sufficient frequency) and was possibly too old for the position. EN also expressed concern about MEN’s reduced verbalisations and her propensity to uncontrolled salivation during the hearing and saw that as evidence of inadequate medical care.
EN’s lay advocate suggested that the Deputy Public Guardian required re-training under the terms of some proceedings before the Anti Discrimination Commissioner.
The Public Guardian reported that MEN left the Hospital on 17 December 2009 to the Nursing Home as a temporary measure that lasted until 5 August 2010. At that time she moved to age appropriate accommodation managed by [XXXXX ]. The medical reports supplied noted that MEN’s health had improved since leaving hospital. The Public Guardian’s report also noted that on occasions MEN’s family members arrange to visit but do not attend at appointed times.
The Deputy Public Guardian gave evidence that she had been notified of falls by the Nursing Home and that she had authorised various measures to prevent falls during her residence at that facility according to the protocol of that facility. At the hearing there was evidence that MEN has had access to a range of day services, medical specialists and allied health specialists.
All of the witnesses at the hearing except EN and Mr Saunders expressed the view that MEN has access to appropriate care and support and that the guardian has been actively involved in promoting MEN’s best interests. The Board was satisfied that MEN is now appropriately housed and has access to an appropriate level of care and support. She is reviewed by a GP monthly, she has visits from a community nurse, she attends speech pathology and occupational therapy consultations and a dental clinic. She also has an active social life.
EN admitted that he has never been to visit his sister at the [XXX] facility. The Board particularly notes this exchange with the Chair of the hearing:
Chair:“Is it the case, EN that you’re going to find fault with whoever is caring for MEN?”
EN: “Yes, yeah”
Chair:“So, are you ever going to be happy?”
EN:“No”
From this the Board concluded that EN is prone to complain about all aspects of his sister’s care regardless of whether such complaints can be substantiated.
Is the Public Guardian the Appropriate Guardian?
EN did not demonstrate an understanding of the role and responsibilities of a guardian. He also admitted that when he was the sole carer for his sister she had no contact with any outside services. The Board does not believe that he is an appropriate person to appoint as her guardian. EN also nominated his sister in law as a guardian, however as she did not attend the hearing and had not given consent to appointment, the Board could not consider that nomination.
The Board was impressed with the improvements in MEN’s life since the last time it considered MEN’s orders. The Board did not accept EN’s evidence that the Deputy Public Guardian is too old for the position. The Board also did not accept that the alleged fall that MEN had at the Nursing Home was the fault of the Public Guardian and notes that appropriate actions were taken with respect to prevention of falls. EN’s reasons for seeking review of the order were not substantiated by the objective evidence and the Board took the view that the order remains appropriate and the Public Guardian remains the appropriate guardian for MEN.
THE BOARD ORDERS
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.
3. Pursuant to section 28 of the Act, if the guardian has reasonable grounds to believe that the represented person is likely to suffer damage to her physical, emotional or mental heath or wellbeing unless immediate action is taken, the guardian and the Commissioner of Police (or his delegate) and/or the Secretary of the Department of Health and Human Services (or his delegate) may take the following 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:
(i) Remove the represented person from any premises that the Public Guardian deems to present a risk to her 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 her 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 referred to in clause 3(i) above.
That the order remains in effect to 3 February 2014.
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
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