NSO (Emergency Guardianship)

[2012] TASGAB 26

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

NSO – Application for an emergency guardianship order by Mental Health Services

Neutral citation: NSO (Emergency Guardianship) [2012] TASGAB 26

REASONS FOR DECISION

Anita Smith (President)

Date of order: 4 September 2012

Guardianship – application for emergency guardianship – circumstances of urgency – grounds for appointing a guardian – prevention of unnecessary and possibly harmful treatment

Guardianship and Administration Act 1995 – s 65

1. On the evening of 4 September 2012 the Board received an application for the appointment of a guardian under emergency provisions in section 65 of the Guardianship and Administration Act 1995 from Mental Health Services regarding NSO.

2. Where the Board considers it proper to do so, by reason of urgency, the Board may make a guardianship order for a person where there may be grounds for making a guardianship order. In the exercise of its powers under section 65 of the Act, the Board is not required to give notice to any person or to hold a hearing before making an order. However, the Board must make such inquiries or investigations as the Board may think appropriate. 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.

1. In this application, the urgency arose because Mental Health Services staff members became aware that NSO had an appointment with a General Practitioner the following day, on 5 September 2012, to receive an injection of anti-tumour-necrosing factor (anti-TNF). Anti TNF was described in the application as being a treatment for arthritic condition.  The use of these drugs is careful and highly selective. They should be used according to appropriate guidelines and only with specialist supervision, due to significant potential side effects.   Given the limited available time, these assertions were prima facie validated by a quick internet search. 

2. The applicant indicated that it was not known whether NSO has an arthritic condition and whether he would benefit from this treatment, as pathology test results did not indicate a need for the treatment.  It was also suggested that he may come to harm from having this treatment due to the side effects.

3. According to the applicant, NSO is a 32 year old man with a range of psychiatric conditions including dependent personality and hypochondriasis.  The application notes that the relationship between NSO and his mother is complex and she may seek unnecessary treatment for him [Two sentences have been redacted from this statement of reasons in the interests of NSO.] The applicants indicated that NSO lacked capacity to decide what constitutes appropriate treatment due to his susceptibility to influence and in particular his inability to resist his mother’s intervention in health care matters. 

4. The applicant sought the emergency order so that a guardian might prevent NSO from having an unnecessary and possibly harmful treatment.  The Board made enquiries of the applicant as to whether, instead of an emergency guardianship order, it may not be possible to rely upon standard professional ethics to see that a medical practitioner would refuse to give the treatment if it was not medically warranted or if the patient was not giving sufficiently informed and free consent to treatment.  The applicant was concerned that a practitioner, who does not know the relationship dynamics at play, would not recognise that NSO was acting under the influence from his mother and not acting independently in seeking treatment.

5. The applicant was also concerned that the discord between the views of the Mental Health Services treatment team and NSO’s mother was causing significant distress for NSO.  It was noted that, according to the applicant, NSO expressed no objection to the application.

6. The Board was satisfied that there was a need for an independent decision maker to assess whether any possible benefits arising from the proposed treatments outweighed the risks of having such treatment.  The circumstances were urgent because the appointment for treatment was due within 24 hours and that would not afford the Board sufficient time to investigate the circumstances more fully.  The Board was satisfied that there may be grounds for making a guardianship order and that these grounds ought to be tested fully in an application and a hearing at a later date. Accordingly, the Public Guardian was appointed as NSO’s guardian limited to health care matters for 28 days. 

Conclusion:
The Board being satisfied that there are reasons for urgency and grounds for making a guardianship order in respect of NSO (hereinafter called the ‘represented person’)

THE BOARD ORDERS

1. That the Public Guardian be appointed as guardian of the represented person.

2. That the powers and duties of the guardian are limited to decisions concerning consent to any health care that is in the best interests of the represented person and to refuse or withdraw consent to any such treatment.

3. That this order remains in effect for 28 days from this date.

FURTHER THE BOARD DIRECTS:

1. That on or before the expiry of 25 days duration of this order the Public Guardian shall report to the Board in accordance with the approved form for emergency order reports.

2. If a further order is required the Public Guardian is hereby directed to take all reasonable steps to ensure that an application for guardianship and a Health Care Professional Report are completed by the applicant before the expiry of the emergency order.

Anita Smith

PRESIDENT

(Reasons requested 25 September 2012 and delivered 26(?) September 2012)