NMX (Guardianship) - [2012] TASGAB 37

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

NMX – Application for the Appointment of a Guardian by Dr. Brian Ferry

NMX (Guardianship) [2012] TASGAB 37

REASONS FOR DECISION

Anita Smith (President)
Kim Barker (Member)
Andrea Schiwy (Member)

Date of Hearing: 21 November 2012

Guardianship – need for a guardian – medical practitioner concerned about professional responsibilities – capacity of a guardian to intervene with a represented person who is exchanging sex for illicit substances

Guardianship and Administration Act 1995 s. 20

On 8 October 2012, Dr. Brian Ferry applied for the emergency appointment of a guardian for his patient, NMX. The Board dismissed that application as an emergency application (due to a lack of urgency) but agreed to accept the application as an application pursuant to section 20, given it was accompanied by a completed Health Care Professional report and the fact that NMX is already a represented person with respect to administration.

In assessing the application pursuant to section 20 of the Guardianship and Administration Act 1995 (the Act), the Board must enquire as to whether:
(a)NMX is a person with a disability,
(b)Her disability renders her incapable of making reasonable judgments about her person and circumstances,
(c)Whether she is in need of a guardian, and
(d)The eligibility of any nominees for appointment as guardian.

NMX is already the subject of an administration order appointing the Public Trustee. Accordingly, the requirements of section 20(1)(a) and (b) of the Act are likely to be confirmed on the basis of health care professional report. However, this application failed with respect to the application of section 20(1)(c), i.e. that NMX is not in need of a guardian. This statement of reasons will address why the Board did not consider there was a need for a guardian.
The application was heard by the Board on 21 November 2012. Although she was given notice of the hearing, NMX declined to attend. She arranged for a disability advocate to speak on her behalf. The following persons attended the hearing:
Dr. Brian Ferry – Applicant (by telephone)
Ms. Debra Hordacre – Disability Advocate
Mrs. Margaret Colville – Deputy Public Guardian
Ms. Lisa Rooney – Langford Support Services (residential support provider)
In the application, the applicant wrote the following with respect to NMX’s need for a guardian:
“NMX is abusing illicit substances. She has appeared to be sedated at times. This poses a health risk. She has been obtaining illicit substances in return for sexual favours. She is at risk of receiving a sexually transmitted disease. She has an intellectual disability along with psychiatric disabilities.” and
“A guardian would be able to make a decision whether to allow NMX to continue to be exploited. A guardian would be able to decide whether the police need to be contacted regarding her obtaining illicit substances in return for sexual favours.”
At the hearing, the applicant repeated those concerns. He stated that his concern arose from her intellectual capacity to understand and consent to those behaviours. He raised concerns about his responsibility as her medical practitioner, i.e. Is it his responsibility to intervene with respect to her consent to sexual intercourse? Is it his responsibility to report the abuse of illicit drugs? What are the limits of his responsibility as a medical practitioner?
The applicant questioned whether NMX has the capacity to give informed consent to these exploitative sexual relations. The Board noted that NMX has a number of children and is known to have had a significant (but very unsuccessful) de facto relationship. The present sexual relations noted by the applicant are not different in respect to the quality of her consent to those previous sexual relations and, given the very sad consequences of those past sexual relationships, it is not possible to state that the present relations put her at greater risk.
There are no mandatory reporting conditions requiring the reporting of consensual sexual relations with a person with an intellectual disability. The Board considered that NMX’s level of understanding of sexual relations is not so impaired as to give rise to any charges pursuant to Chapter IV of the Criminal Code in the circumstances described by the applicant, where she has consented to those relations.
The Board was not satisfied that the appointment of a guardian can address the risk of sexually transmitted diseases. Langford Support Services is providing some support and can give advice about safe sex practices, but a guardian cannot realistically impose safe sex practices.
The Deputy Public Guardian gave evidence that these behaviours of concern arise only when NMX is stressed and therefore addressing issues of stress would address the behaviours. The Deputy Public Guardian’s view was that calling Police would only result in NMX’s short term hospitalization and that would not promote her best interests.
The Board discussed the limits to the capacity to control of NMX’s behaviour, indicating that given she is already in supported accommodation, the only means to impose greater control would be to have her detained in a secure mental health facility. The applicant was not of the view that detention in a secure mental health facility would have any benefits for NMX.
The Board did not consider that it is the role of a guardian to report a represented person’s illicit drug activities to Police. Aside from a conflict with the duty to act in the represented person’s best interests, the guardian would only be able to give hearsay evidence to Police and without the complainant’s (represented person’s) co-operation, it is highly unlikely that any charges would be successful. The Board was aware that NMX’s previous partner is accused of having sexually abused her children. This is a matter that has deeply distressed NMX and from which she is still recovering. However, she refused to make a complaint to Police with regard to that matter, so it is far less likely that she would assist Police with regard to any of the activities outlined by the applicant.
Ms. Hordacre gave evidence that NMX’s life has always been tumultuous and difficult. Ms. Hordacre discussed her response to traumatic incidents in her life and her capacity to protect herself, but also noted that she has a high tolerance for personal violence and abuse due to her life history. This does not mean that NMX is not entitled to protection, but it did mean that she is unlikely to see the exchange of sex for illicit substances as personally abusive. The Board considered this evidence to be relevant to NMX’s wishes, particularly not to have the intervention of a guardian.
The Board noted that, at the time of the hearing, NMX was in hospital under a Mental Health order. It is possible that her treatment regime will be reviewed and that she may be able to deal with her current depression (which appeared to have motivated the behaviours) better after discharge. It appeared to the Board that NMX’s behaviours had abated recently, even before hospitalisation. Ms. Rooney indicated that Langford staff were fully aware of NMX’s behaviours and were working towards strategies to divert her towards better self-care.
For the reasons given above, the Board was not satisfied that NMX is in need of a guardian. Accordingly, the application is dismissed.

Anita Smith
PRESIDENT