OH (Request for Emergency Guardianship Order)
[2021] TASGAB 15
•3 March 2021
CITATION: | OH (Request for Emergency Guardianship Order) [2021] TASGAB 15 |
HEARING DATE(S): | 3 March 2021 |
DATE OF ORDERS: | 3 March 2021 |
DATE OF STATEMENT OF REASONS: | 15 March 2021 |
BOARD: | Ms R Holder, President |
APPLICATION | Request for Emergency Guardianship Order |
CATCHWORDS: | Emergency guardian request – urgency – medical treatment power sought – COVID-19 vaccination |
LEGISLATION CITED: | Guardianship and Administration Act 1995 (Tas), ss 6, 20, 25, 36, 41, 43, 65 |
PUBLICATION RESTRICTION: | The decision has been anonymised for the purpose of publication |
Statement of Reasons
Background
On 3 March 2021, the Guardianship and Administration Board (‘the Board’) dismissed a Request for an Emergency Guardianship Order for OH. OH is an 85 year old gentleman who lives in [the Aged Care Facility]. The Applicant is NX, Registered Nurse at [the Aged Care Facility].
On its own motion the Board has published this Statement of Reasons.
Legislation
Part 8, section 65 of the Guardianship and Administration Act 1995 (‘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.
…..
(4)In the exercise of its powers under this section –
(a) 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
(b) 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
…
(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.
Section 20 of the Act provides the grounds for making a guardianship order:
(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.
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.
Evidence and Determination
The Request for an Emergency Guardianship Order (‘the Request’) was accompanied by:
a.A letter addressed to ‘Dental Surgeon’, from Dr Shaunagh Jones, dated 29 January 2020.
b.File Note in relation to directed enquiries made by the Board Registry, dated 3 March 2021.
The Application states that ‘COVID-19 Public Health team scheduled to vaccinate [the Aged Care Facility] residents on site Wednesday 10th March 2021.’
It is well known, the Federal Government commenced a nationwide COVID-19 vaccination program in late February 2021. The vaccination rollout is to occur in a number of phases over the coming months, giving certain people priority for vaccination. In the initial phase of the rollout, priority is given to residents and staff at aged and disability residential care facilities. Vaccination of residents in those facilities is understood to have commenced.
A COVID-19 vaccine may be administered to a person who is capable of giving consent to it. It can also be administered to a person who is
incapable of understanding the general nature and effect of the proposed vaccination;
or
is incapable of indicating whether he or she consents or does not consent to the vaccination.[1]
who has a substitute decision maker who may consent on their behalf. Whether consent is given to the vaccine or not is up to the person or their substitute decision maker.
[1] Guardianship and Administration Act 1995 (Tas), s 36.
The Application asserts that OH is unable to give consent to the vaccination and requires a substitute decision-maker.
The Board needs to consider the statutory criteria in section 20 of the Act and be satisfied that OH may have a disability, and if so that by reason of disability he is unable to make reasonable judgements in respect of decisions pertaining to medical treatment.
The Applicant, a registered nurse at [the Aged Care Facility], advises that OH has Alzheimer’s dementia. The Applicant states OH ‘lacks insight and requires multiple physical and verbal prompts to follow instruction due to cognitive impairments’. The Applicant also states OH is ‘unable to make an informed decision’. A letter from Dr Shaunagh Jones, [the Medical Centre] advises that OH has ‘Alzheimers Disease’ and ‘his understanding of conversation and explanation is limited.’ The Board is persuaded that OH may have a disability and may by reason of it be unable to make reasonable judgments pertaining to medical treatment.
The Board also needs to be satisfied there may be a need for the appointment of a guardian.
If a person has a guardian (enduring guardian or Board appointed) then the guardian can provide consent to medical treatment if they have a power to make decisions pertaining to medical treatment,[2] or as Person Responsible.[3]
[2] Ibid, s25(2).
[3] Ibid, s43, see s4 of the Guardianship and Administration Act 1995 (Tas) for meaning of ‘person responsible’.
The Request states that OH does not have the Public Guardian appointed as his guardian and a search of the Enduring Guardian Register does not indicate OH has a registered enduring guardian instrument appointing a guardian. The Applicant states OH’s wife is unable to give consent and there is no other person named in the Application who could act as Person Responsible.
Under the Act there is the ability for a medical practitioner to provide medical treatment which is not special treatment:
to a person to whom Part 6 of the Act applies; and
where there is no person responsible; and
where the treatment is necessary and is the form of treatment that will most successfully promote the person’s health and well-being; and
where the person does not object to the treatment.
The medical practitioner must certify these factors in the person’s medical record.[4]
[4] Ibid, s41.
The question of whether a vaccination is ‘necessary medical treatment’ would need to be considered carefully by the medical practitioner seeking to provide treatment. If it is deemed the vaccination is not ‘necessary medical treatment’ then an application for consent for medical treatment or application for guardianship may need to be made to the Board.
In the Request before the Board, there is no evidence that any medical practitioner has made an assessment that the vaccination is necessary medical treatment, or a medical practitioner is likely to make such an assessment. In the absence of that it appears the only avenue for substitute consent to be considered is by application to the Board for medical consent or for a guardianship order.
The Board determines on the evidence before it, before it that there may be a need for a guardian to be appointed.
Urgency
The Board must be satisfied that ‘by reasons of urgency’ there may be grounds for making a guardianship order. The relevant issue is whether a guardian needs to be appointed urgently to consider whether OH should receive the COVID 19 vaccination.
The Applicant states that the COVID-19 vaccination provided by the Public Health Team is scheduled to vaccinate residents at [the Aged Care Facility] on Wednesday 10th March 2021. Directed enquiries by Registry revealed that the COVID-19 vaccination requires two injections. There was no evidence before the Board to suggest that OH would be deprived of the opportunity to receive the vaccine if he did not receive it on the 19 March 2021. The Applicant conceded it may be possible for OH to have his first dose when Public Health returns to give other patients at the facility the second dose. There may also be an option for him to access it through his General Practitioner or at a public health clinic, if it is determined he should receive it.
At the time of determination of this Request there was no known current active cases of COVID-19 in Tasmania. There was no evidence before the Board as to what implications, including possible medical implications exist if OH did not receive the vaccination straight away.
If the Applicant believes the appointment of a guardian is needed then an Application for Guardianship can be made. Alternatively consideration can be given to making an Application for Consent to Medical Treatment. This process ensures procedural fairness is afforded to OH and parties to the Application.
The Board is not satisfied on the evidence before it that there are reasons for urgency for a guardianship order to be made. There is no evidence that OH will be denied the vaccination if he does not receive it at the time of the Public Health team’s first visit, and therefore ‘mere convenience’ is not sufficient grounds to make an order.
Order
The Guardianship and Administration Board Orders that the Request for an Emergency Guardianship Order is dismissed.
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