QBK (Review Guardianship)

[2017] TASGAB 21

GUARDIANSHIP AND ADMINISRATION BOARD
HOBART

QBK – Board’s own Motion Review of a Guardianship Order

QBK (Review Guardianship) [2017] TASGAB 21

REASONS FOR DECISION

Rowena Holder (Chair)
Grant Kingston (Member)
Louise Mollross (Member)

Date of hearing: 23^rd November 2017

Guardianship – healthcare – NDIS – service agreements

Guardianship and Administration Act 1995 s. 6, 20

National Disability Insurance Scheme Act 2013 (Cth) s. 31

1. On 23^rd November 2017 the Guardianship and Administration Board (the Board) heard a Board’s own Motion Review of a Guardianship Order made on the 4^th May 2017.

2. Present at the hearing on the 23^rd November 2017 were NK, CEO of the disability service; BI, applicant and manager of client support at the disability service; LX, House Manager of the disability service and Maddy Russell, Office of the Public Guardian. QBK, the proposed represented person did not attend the hearing.

3. The Board had before it a copy of its Order dated 4^th May 2017 and a Health Care Professional Report by Dr Martin Neuberger.

4. The Office of the Public Guardian has requested a Statement of Reasons in relation to the Board’s decision.

5. The relevant history leading up to the application includes the following:

   a)The Board had part heard an application for consent to medical or dental treatment dated 23^rd March 2017 on the 4^th May 2017 together with an application for guardianship

   b)The Board made a limited guardianship order on the 4^th May 2017, which included a powers to consent to (i) any healthcare that is in the best interests of the proposed represented person and to refuse or withdraw consent to any such treatment; (ii) dental treatment, including general anesthetic as recommended by a qualified dental practitioner

   c)The Board made no order in respect of the application for consent to medical or dental treatment and no outcome was determined

   d)On 23^rd November 2017 the Board continued the hearing of the application for consent to medical and dental treatment dated 23^rd March 2017 and also heard the application for consent to medical and dental treatment dated 18th October 2017 for QBK. Both applications proposed medical and dental treatment for QBK and were couched in similar terms. The Board determined the applications together.  The Board had the benefit of hearing evidence from Dr Jones from Oral Health Services, and Dr Neuberger who is QBK’s general practitioner. The Board gave consent to medical treatment, namely the taking of pathologies under general anesthetic and for dental treatment, namely dental examination and treatment under general anesthetic

6. A review of a Guardianship Order requires the Board to determine whether the order made on the 4^th May 2017 ought to be varied, or continued and consider the principles of section 6 of the Guardianship and Administration Act 1995 (the Act).

7. At a review hearing the Board is to determine whether the requirements of section 20 of the Act are still met, that is whether QBK:

   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 person or circumstances

   c)is in need of a guardian.

8. There was no dispute at hearing that QBK suffered from a disability which impacts on his ability to make reasonable judgements in respect of matters relating to his person or circumstances.   A Health Care Professional Report had been received from Dr Martin Neuberger dated 23^rd March 2016.  Dr Neuberger indicates that QBK has a diagnosis of Fragile X Syndrome, evident since birth and is unable to understand the nature and effect of medical treatment and unable to make personal decisions.

9. In relation to need, the Applicant indicated there was still a need for a guardian to consent to appointments with the general practitioner and to medications.  It was submitted by the applicant that QBK did not have a family member or supportive person who could act as person responsible from whom to obtain consent from.

10. The Board heard evidence that QBK is a participant under the National Disability Insurance Scheme (NDIS).  It was established that QBK does not have a NDIS plan nominee as he is unable to consent to such an appointment, and is unable to engage an advocate.  The Board heard from QBK’s disability accommodation provider that an NDIS plan had been devised for QBK.  A planner had consulted with the disability accommodation service staff and looked at personal support plans and medical information pertaining to QBK. No independent substitute decision maker had been involved.

11. It was submitted by the disability service that QBK requires a guardian to sign service agreements so that service providers are funded for services they provide to QBK.

12. The National Disability Insurance Scheme Act 2013 (Cth) (the ‘NDIS Act’) requires that the CEO of the NDIA must facilitate the preparation of a plan in accordance with the NDIS Rules for each participant in the NDIS (section 32 NDIS Act.). The plan must include a statement of the participant’s goals and aspirations and a statement of participant supports (section 33 NDIS Act). Section 31 contains the principles relating to plans, which include (amongst others):

    -   The plan be individualised and directed by the participant;

    -   Where relevant, consider the role of family, carers, and other significant persons;

    -   Be underpinned by the right of the participant to exercise choice and control.

13. The Board’s view is that where important lifestyle decisions are required to be made on behalf of a person who lacks the capacity to make decisions and who cannot be supported to make decision for themselves, then it is appropriate that an independent substitute decision maker is appointed to undertake that responsibility. QBK‘s disability clearly prevents him from being able to make major decisions such as those involved in NDIS planning. Further, QBK has no person to support him or advocate for him through the planning process and he has no way in making his wishes known. QBK has clearly been denied the right of an independent guardian advocating on his behalf in the development of the NDIS plan and its implementation. This is of serious concern and is contrary to the objects of the NDIS as are contained in section 3 of the NDIS Act and contrary to section 31 of the NDIS Act, set out above.

14. The Board was satisfied that there is a need for a guardian to sign the service agreements, review QBK’s NDIS plan and to consider whether the plan meets the needs of QBK and reflects his best interests.

15. The Board was satisfied that the guardianship order requires further variation. Given the consent to medical treatment provided by the Board, there is no longer a need for a guardian to provide consent for dental treatment under general anesthetic.

THE BOARD ORDERS

1. That the Public Guardian continue as the represented person’s guardian.

2. That the powers and duties of the guardian are limited to decisions concerning;

   (i)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; and

   (ii)determine and provide consent to the provision of support services which the represented person should have access.

3. That the order remains in effect to 3 May 2020.

Rowena Holder  Louise Mollross   Grant Kingston

PRESIDENT   MEMBER                MEMBER

20^th December 2017