NPC (Extended Emergency Guardianship)
[2019] TASGAB 21
•9 August 2019
CITATION: | NPC (Extended Emergency Guardianship) [2019] TASGAB 21 |
HEARING DATE(S): | 9 August 2019 |
DATE OF ORDERS: | 9 August 2019 |
DATE OF STATEMENT OF REASONS: | 29 August 2019 |
BOARD: | President R Holder |
APPLICATION: | Guardianship – Extension of Emergency Order |
CATCHWORDS: | Emergency Guardianship – renewal of Emergency Order – power to vary – additional powers - urgent circumstances |
LEGISLATION CITED: | Guardianship and Administration Act 1995 (Tas) ss 6, 20, 28, 31, 65, Sch. 2 Pt 1 s 5 |
CASES CITED: | FLI (Emergency Guardianship) [2018] TASGAB 32, SGX (Extended Emergency Guardianship) [2018] TASGAB 29 |
PUBLICATION RESTRICTION: | This decision has been anonymised for the purpose of publication |
Statement of Reasons
Background
On 12 July 2019, the Guardianship and Administration Board (‘the Board’) made an Emergency Guardianship Order for NPC, the Represented Person, which remained in effect until 9 August 2019. The Board appointed the Public Guardian with powers and duties limited to decisions concerning the admission of the Represented Person to the Roy Fagan Centre or any other Tasmanian Health Service facility.
A request for Advice or Direction was received by the Board on 15 July 2019 from the Public Guardian, pursuant to section 31 of the Guardianship and Administration Act 1995 (‘the Act’). The Board varied the Order on 17 July 2019 pursuant to section 31(3)(c) of the Act by adding an additional term to the Order. The additional term to the Order gives the Guardian powers under section 28 of the Act, that is, power to enforce the Guardianship Order.
On 9 August 2019, the Board amended the Order pursuant to Schedule 2 Part 1 section 5 of the Act to include the date until which the Order was to remain in effect, namely, 9 August 2019.
On 9 August 2019 the Board renewed the Emergency Guardianship Order for a further 28 days. The new Order remains in effect until 6 September 2019.
A request for a Statement of Reasons has been made by Ms Valerie Hannon from the Office of the Public Guardian in relation to the extension of the Emergency Guardianship Order.
Legislation
Part 8, section 65 of the Act gives the Board the power to make orders if urgent circumstances exist, providing the Board is satisfied there may be grounds for making an order. Section 65 provides:
(1)Where the Board considers it proper to do so by reason of urgency, the Board may in respect of a represented person make any order or give any direction considered appropriate in the circumstances.
(2)Where the Board considers it proper to do so, by reason of urgency, the Board may, in respect of a person who is not a represented person but in respect of whom the Board considers that there may be grounds for making a guardianship order or an administration order make an order appointing –
(a)the Public Guardian as his or her guardian; or
(b)the Public Trustee as administrator of his or her estate –
and in either case the Board may make any order or give any direction considered appropriate in the circumstances.
(3)The Board may make an order under this section of its own motion or on request by any person whom the Board considers to have a proper interest in the matter.
(4) In the exercise of its powers under this section –
(c)the Board is not required to give notice to any person or to hold a hearing before making an order but the Board must make such inquiries or investigations as the Board may think appropriate; and
(d)the Board may act on a request made, or information received, by telephone or any other means that the Board considers appropriate in the circumstances; and
(e)…
(4A) The powers and functions of the Board under this section may be exercised and performed by one or 3 members of the Board as may be determined in each case by the President.
The Board can renew an emergency order once, pursuant to section 65(5):
(5) An order under this section –
(a)remains in effect for such period as the Board determines but not exceeding 28 days; and
(b)may be renewed but only once for a further period not exceeding 28 days.
Further, section 6 of the Act sets out the underlying principles of the Act:
A function or power conferred, or duty imposed, by this 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.
Grounds for a Guardianship Order
Section 20 of the Act provides:
(1)If the Board, after a hearing, is satisfied that the person in respect of whom an application for an order appointing a guardian or an order appointing an administrator is made –
(a)is a person with a disability; and
(b)is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to his or her person or circumstances; and
(c)is in need of a guardian –
the Board may make an order appointing a full or limited guardian in respect of that person and any such order may be subject to such conditions or restrictions as the Board considers necessary.
The Application for an Emergency Guardianship Order dated 12 July 2019 filed by a social worker at the Royal Hobart Hospital (‘RHH’) was accompanied by a Health Care Professional Report from geriatrician, Dr Alison Cleary (‘Dr Cleary’s Report’). The Application stated that NPC was referred to the RHH Emergency Department on 2 July 2019 by her GP due to rapid cognitive decline and confusion, bilateral forearm skin tears, chronic diarrhoea and carer fatigue. There had been an admission to the RHH in February 2019. The Application states she was:
… referred to the Older Persons Unit and then transferred to the Roy Fagan Centre on the 9 July 2019 for further medical management, slow stream rehabilitation and sequential cognitive testing. She has attempted to exit the unit and frequently expressed her wish to return home. Given that NPC is being actively detained on the Jasmine Unit against her wishes, an emergency guardianship order is sought to provide consent for her continued admission to the Roy Fagan Centre…. If she was to discharge before receiving further medial assessment and management she is at risk of deterioration in health, malnutrition and falls.
The Guardian’s report stated that consent had been provided by the Guardian for NPC’s admission to the Roy Fagan Centre (‘RFC’). The Guardian reports that NPC continues to actively express her wish to return home. The Guardian recommended that the Order continue and the powers be extended. The Guardian requested additional powers be added to include decisions related to accommodation and support services. The Guardian did not indicate that NPC was receiving medical treatment.
The Board is satisfied that there are grounds to renew the Emergency Guardianship Order, as it has Dr Cleary’s Report commenting on disability and incapacity. Without the benefit of a hearing, the Board accepts this information on a prima facie basis. The Board also has the Guardian’s report which identifies a probable need for a guardianship order, which the Board accepts on a prima facie basis.
Urgency
Further the Board is satisfied it is proper to renew the Emergency Guardianship Order, by reason of urgency. The urgency is the need for ongoing detainment of NPC at the RFC, given her expressed wish to leave, and if she does attempt to leave, the ability to enforce the Order. NPC is a person incapable of giving informed consent to her admission and has expressed her wish not to be at the RFC and to be discharged home.
Decision
Accordingly, before the original Emergency Guardianship Order expired, the Board renewed the Emergency Guardianship Order for a further 28 days with the same powers. This also included the section 28 power to enforce the Order, which as mentioned before, was an additional power that was subsequently added on 17 July 2019, due to the Guardian’s request for Advice or Direction.
Section 28 is to be used where necessary to ensure the Represented Person complies with a decision of the Guardian, in the exercise of the Guardian’s powers and duties conferred by an Order of the Board. It is not a stand-alone power and therefore cannot exist without an Order of the Board conferring a power or powers on the Guardian. It therefore follows that the section 28 power operates for the period of the Order, unless otherwise specified in the Order.
While the Board is not bound by its previous decisions, those decisions ought to be followed as a matter of consistency and comity, unless a substantial error in reasoning can be identified in forming a different view, or if particular circumstances require it to be distinguished. The Board adopts the interpretation of ‘renew’ preferred by the Board in SGX (Extended Emergency Guardianship) [2018] TASGAB 29 and repeated in FLI (Emergency Guardianship) [2018] TASGAB 32 and in particular at paragraph 12-14:
Section 65(5) states an order can be renewed for a single further period of 28 days. It does not provide the power to vary the order by adding additional powers.
The word renew is not defined in the Act. The Board considered the plain English meaning. The Macquarie Dictionary (2016) defines renew as:
to begin or take up again, as acquaintance, conversation, etc.
to make effective for an additional period: to renew a lease.
to restore or replenish: to renew a stock of goods.
to make, say, or do again.
to revive; re-establish.
to recover (youth, strength, etc.).
to make new, or as if new, again; restore to a former state.
–verb (i)
to begin again; recommence.
to renew a lease, note, etc.
Therefore applying the ordinary meaning of the word renew and adopting the wording of the Macquarie Dictionary, the legislation enables the Board to, ‘makes effective for an additional period’ the emergency guardianship order, that is for a further 28 days.
There is nothing in section 65 that expressly enables the Board to vary or amend the original emergency order and section 65(5)(b) does not contemplate more than a limited renewal power. It would be inconsistent with ordinary principles of statutory interpretation to attempt to read into this section a power to vary the original orders.
In the event that the circumstances of a Represented Person (subject to an emergency order) changed sufficiently as to warrant removal or additional powers being granted to a Guardian, that could in principle be done under section 65(1), provided that the Board was satisfied ‘to do so by reason of urgency.’
The Guardian’s report submits there is urgency to warrant additional powers as NPC is ready for discharge and is ready:
….to trial a return home this coming weekend (Fri-Sun), Dr Cleary has agreed to hold her bed for a short period. There is a considerable risk the trial will fail…If a trial fails it is likely to do so within a short number of days.
The Guardian indicated in her Report that ‘an alternative discharge destination is likely to be a residential aged care facility.’
The Board is not satisfied urgent circumstances exist to require a variation of the Order. NPC is safe and being cared for at the RFC. She is not at risk of harm or neglect. While it is preferable the trial home occurs sooner rather than later it is not so urgent that emergency orders are required now. The timelines for a trial can be altered. These circumstances are not uncommon and can often exist when people are discharging from hospital and require decisions to be made as to discharge accommodation.
An application for Guardianship pursuant to section 20 of the Act can be made, and indeed has been made in respect of NPC and listed for hearing. The Guardian can seek specific powers at hearing, as she has identified in her report. This is the appropriate process where there is no urgency for the immediate safety and care of the Represented Person. It is a process that ensures procedural fairness to the Represented Person and to other parties. Procedural fairness affords the Represented Person, the parties and other persons with a proper interest in the matter the ability to receive notice of the hearing and to present relevant material to the Board in person or through written evidence. It also provides opportunity for the Represented Person, to consider whether or not legal representation or advocacy is required and to obtain representation if they so wish. Pursuant to s 6 of the Act, it also allows the Board to hear evidence from the Represented Person as to her wishes, if she chooses to participate in the hearing. It is also least restrictive of the Represented Person’s freedom of decision and action as is possible in the circumstances.
Order
The Board is satisfied there are grounds to renew the Emergency Guardianship Order.
1.That the Public Guardian (Tas) continue as Guardian of the Represented Person.
2.That the powers and duties of the Guardian are limited to decisions concerning the admission of the Represented Person to the Roy Fagan Centre or any other Tasmanian Health Service facility.
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 their physical, emotional or mental health 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 (or his delegate) and/or the Chief Executive Officer of the Roy Fagan Centre may take the following measures or actions to ensure that the Represented Person complies with any decision of the Guardian in the exercise of powers and duties conferred by the Order;
(i)facilitate transport of the Represented Person to the place of residence determined by the Guardian;
(ii)to restrain the Represented Person from leaving the place of residence determined by the Guardian from time to time;
(iii)return the Represented Person to that place of residence, should they leave it; and
(iv)to use such reasonable force as is necessary to effect the Guardian’s purpose.
4.That this Order remains in effect until the 6th day of September 2019.
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