NKT (Guardianship and Administration) - [2018] TASGAB 19

GUARDIANSHIP AND ADMINISTRATION BOARD
BURNIE

NKT (Guardianship and Administration) [2018] TASGAB 19

GAB No. XXXX

STATEMENT OF REASONS

Colin McKenzie (Deputy President)

Hearing 10 August 2018

Administration – adjournment – interim order – future risk - current need – least restrictive – balance - Statement of reasons – person aggrieved
Guardianship and Administration Act 1995

On 28 June 2018 the Board received an application from Mr Stephen Hayes, Clinical Lead at Tasmanian Mental Health Service (TMHS) for orders appointing an Administrator and a Guardian for NKT. The hearing of that application commenced on 10 August 2018. NKT was represented by a legal practitioner, who appeared with the leave of the Board. The applicant did not attend, but another senior member of TMHS staff who was familiar with NKT’s circumstances attended in his place.
NKT opposed the orders sought by the application and sought an adjournment of the hearing for reasons relating to notice of hearing being shorter than the statutory period, and the need to further prepare her case and a desire to ask questions of the persons who made statements. Her application for adjournment was granted and directions were given in relation to disclosure of relevant documents, witness statements and expert opinions.
The decision to adjourn the hearing raised the issue of interim orders pending the resolution of the application.
The application for interim orders was determined as follows:
a) The proposed represented person is to allow MT to have and retain possession of her passport.
b) The application for interim order appointing the Public Trustee as Administrator to lodge a caveat over the proposed represented person's house is dismissed.
Those orders, made under Guardianship and Administration Act 1995 (the Act) s73A, necessarily rested on the Board having been satisfied to the requisite degree that NKT may be a person with a disability who may be unable by reason of the disability to make reasonable judgements about matters relating to her person or circumstances.
On 17 August 2018 the Board received a request, from the Public Guardian, for a statement of reasons for its determination. The Public Guardian clarified that she specifically sought a statement of the reasons with respect to the above interim orders.

Is the Public Guardian aggrieved?

Only a ‘person aggrieved’ by a decision of the Board may apply for a statement of reasons. There are numerous authorities on the meaning of ‘aggrieved’. The term has been interpreted with varying breadth of scope taking into account, among other things, the purpose and terms of the particular statute under which it arises. One factor considered relevant is whether the order had adverse consequences for the person claiming to be aggrieved. In this case the interim orders do not, at first blush, have that effect for the Public Guardian.
I am hampered in determining that point because the recording system at the Court where the hearing occurred failed, so I only have my own notes and recollection to rely on, which are incomplete as a result of the pressures of the hearing list for that day. I do not now recall precisely whether the officer of the Public Guardian made a submission in relation to the interim orders. If a submission was made contrary to the orders made then clearly the Public Guardian would qualify as aggrieved.
The purpose of the requirement that only persons who are aggrieved may apply for reasons is to ensure that only persons with a genuine and sufficient concern with the proceeding may burden the Board with a request for written reasons.
In the circumstances of this application, lacking an audio record, the applicant being the Public Guardian and the orders being somewhat unusual I have decided not to take a strict view of the requirement that the Public Guardian satisfy me she is aggrieved by the interim orders, in this case.

Submissions and Evidence

The applicant’s representative sought interim orders because he said there was a risk, based on his understanding of NKT’s past actions and stated intentions, that while suffering the effects of schizophrenia NKT might leave the State of Tasmania and travel overseas and, in order to fund her travel, sell her property at undervalue, in particular NKT’s house on land in Tasmania.
The applicant had lodged the required Health Care Professional Report (HCPR) dated 28 June 2018, by Dr Michael Tartaglia, a THMS psychiatrist, and which provided sufficient basis for concluding, that NKT may be a person with a disability, namely schizophrenia, who may be unable by reason of the disability to make reasonable judgements about matters relating to her person or circumstances, specifically in regard to travelling alone and while psychiatrically unwell, interstate and overseas funded by selling property at undervalue.
In order to address that risk the applicant’s representative sought interim orders appointing the Public Guardian as Guardian with power to determine and enforce restrictions on NKT’s access to travel interstate and overseas, and appointing the Public Trustee as Administrator to place a caveat over NKT’s home to prevent sale or charging with debt.
The applicant’s representative acknowledged that NKT was currently compliant with her treatment. The concern was not that NKT was currently in a psychiatric state where she was likely to travel or dispose of property inappropriately. Rather, the applicant was concerned that NKT might cease to comply with treatment and as a result the risk might eventuate before the Board determines the application.
NKT opposed the orders.
Her father, MT, who was present at the hearing, stated that he had frequent contact with NKT and would be able to gauge whether her psychiatric condition was deteriorating in time to respond by applying for emergency orders to meet any relevant risk including the risks cited above. He stated he was sure NKT would not sell her house, that she had only been overseas once and out of the State twice. He contended that the applicant as the provider of psychiatric treatment and support for NKT would also know if NKT ceased to comply with her treatment and, likewise could apply for emergency orders or inform MT so that he could respond.
The representative of the Public Trustee stated that if appointed the Public Trustee would lodge a caveat and recover the legal and registration fees, estimated at $250, for doing so from NKT. The Public Trustee’s representative stated that the cost of unravelling a contract for sale of NKT’s home would be very expensive.
As NKT opposed the orders, I advised those present that it appeared that I would have to hear evidence about disputed facts to determine whether interim orders were warranted.
The application was stood down for a short period to give NKT’s representative an opportunity to take instructions. Upon the hearing resuming she advised that NKT would consent to orders requiring her to give her passport to her father to keep pending resolution of the application. Her father agreed to accept that obligation. The applicant’s representative also agreed to accept that arrangement.
In my view that agreement adequately responded to the risk of imprudent travel while psychiatrically unwell because it prevented NKT leaving the country and placing herself outside the Australian jurisdiction. In the event that the risk eventuated she could, at worst, take herself interstate. That had happened before and she had been retrieved by her father. The Board has the power to make emergency orders which are recognised interstate, and other States have corresponding powers to meet the risks identified by the applicant. There were a number of people in a position to notice if NKT’s mental health began to deteriorate, any of whom could apply to the Board for more restrictive orders on short notice and which the Board could respond to expeditiously.
The Board is required by s 6 of the Act to take the course least restrictive of a person’s freedom of decision and action as is possible in the circumstances, so that the person’s wishes are, if possible carried into effect, while promoting the person’s best interests. The Board in applying those required principles must achieve a balance. In my view accepting the agreed arrangement to place NKT’s passport in her father’s possession achieved that balance in accordance with the requirements of the Act.
There was no agreement about the application to give the Public Trustee power under interim order to lodge a caveat over NKT’s home.
I determined that there were no contested facts about which I needed to hear evidence relevant to giving power to lodge a caveat. The facts in dispute related to the details of NKT’s history of compliance with treatment, and her sale of chattels, not real estate, to fund travel. Even if a detailed examination of that history were embarked upon and demonstrated that NKT had acted imprudently while unwell and uncompliant as alleged, the fact remained that all parties agreed she was currently compliant and sufficiently well such that there was minimal current risk of her behaving imprudently. The concern was that she might cease compliance and deteriorate.
The order sought, if made, would cause NKT to incur significant legal costs regardless of the ultimate outcome of the application for final orders. The application stated that NKT’s only source of income was Centrelink benefits. The cost of lodging a caveat would be a significant amount to a person on benefits. The evidence of the likelihood of her developing a wish to raise funds from the sale of her house was vague. I did not understand anyone to claim that she had previously, even when unwell, evinced the intention to raise funds through a transaction relating to her home.
Cases of fluctuating risk and incapacity present particular difficulties in the application of the abovementioned statutory principles. The Board has frequently said that it does not lightly make orders to address a future possibility of risk. The requirement for need of an administrator (s 51(1)(c)) is interpreted as relating to current need rather than future need. A future risk might generate a current need if there is unlikely to be time to sufficiently respond in alternative ways when the risk eventuates. The issue of responding to future need requires evaluation of the degree of risk of the need eventuating, the availability of alternative measures to monitor for the development of the risk, the consequences for the person if the risk eventuates and puts in train a sequence of adverse events, and the speed with which the Board or others could be called upon to act and then respond to it effectively.
Any person may apply for an emergency order, or any of the participants in the hearing may apply under the order reserving liberty to apply for further orders, to respond to any adverse event warranting a different response to the risk of NKT disposing of or encumbering her home.
While mindful of the Board’s obligations under s 6, balancing all the factors in NKT’s circumstances as apparent to me at the time of the hearing lead me to refuse to appoint the Public Trustee as administrator with power to caveat NKT’s property.

Conclusion

After hearing an application for a guardianship and an administration order in respect of NKT (hereinafter called the ‘proposed represented person’)

THE BOARD ORDERS pursuant to its powers under the Guardianship and Administration Act 1995 (hereinafter called the ‘the Act’);

That leave is given for the proposed represented person to be represented by SJ pursuant to section 73 (1) of the Act.
That the hearing be adjourned to a date to be fixed.

AND FURTHER INTERIM ORDER

The proposed represented person is to allow MT to have and retain possession of her passport.
The application for interim order appointing the Public Trustee as Administrator to lodge a caveat over the proposed represented person’s house is dismissed.

DIRECTIONS

The applicant is to liaise with the proposed represented person and her representative to arrange for them to have access to documents in the possession, custody or power of the applicant which are relevant to the issues and/or relied on by the applicant.
The parties are to provide each other and the Board with:
(i) a statement of any expert evidence they rely on; and
(ii) an outline of the evidence of any witness they rely on; and
(iii)an outline of submissions relevant to whether the Mental Health Tribunal has power to make orders with respect to travel, residence, protection of property on enforcement in relation to the proposed represented person.
The parties are to provide the Board with a list of persons in respect of whom they require a summons be issued under section 11 (8) of the Act.
The parties are to comply with directions 2 and 3 no later than 14 days before the date appointed for hearing the application.
Until this application is determined, the Registry is to give notice to the applicant of any application, made by any person, under the Guardianship and Administration Act 1995 relating to the proposed represented person.
The parties have liberty to apply for review of these directions, or for any further directions.