QLB (Guardianship) - [2012] TASGAB 31

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

QLB – Application for Guardianship by Mental Health Services

Neutral citation: QLB (Guardianship) [2012] TASGAB 31

REASONS FOR DECISION

Anita Smith (President)
Date of hearing: 1 October 2012

Guardianship – incapacity – proposed represented person a life prisoner with advanced Huntington’s disease – need for a guardian to address post prison accommodation issues and health care decisions – whether a purported advance care directive negated the need for a guardian – decisions about future legal processes

Guardianship and Administration Act 1995 ss 6, 20
Corrections Act 1997 ss 6, 36, 69(2)(a)
Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994

Hunter and New England Area Health Service v A [2009] NSWSC 761
Brightwater Care Group (Inc.) v Rossiter [2009] WASC 229

On 9 August 2012 the Board received an application from Mental Health Services for the appointment of a guardian for QLB. QLB is a prisoner for the term of his natural life, having been sentenced in 1980 for some very serious offences. He has been in prison since 1975 due to other proceedings. He has advanced Huntington’s Disease and the applicant’s view is that the Prison service can no longer provide adequate services and facilities for QLB in light of his physical and mental deterioration due to this disease. The applicant seeks the appointment of a guardian to make decisions for QLB in the process of finding alternate accommodation for him and determining his future health care.
Before the Board might grant an application for the appointment of a guardian for QLB, it must assess the elements set out in section 20 of the Guardianship and Administration Act 1995 (the Act):
“20(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.”
When making that determination the Board must also balance three principles set out in section 6 of the Act:
“6. 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] TASGAB 31
Decision Date: 1 October 2012

CaseChat Overview and Summary

Mental Health Services applied to the Guardianship and Administration Board for the appointment of a guardian for QLB, a life prisoner with advanced Huntington's disease. The Board was required to determine whether QLB was a person with a disability, whether he was unable by reason of his disability to make reasonable judgements in respect of all or any matters relating to his person or circumstances, and whether he was in need of a guardian. The Board concluded that QLB was a person with a disability within the meaning of the Guardianship and Administration Act 1995. Dr Chris Wake, the Clinical Director, Correctional Primary Health Services, testified that QLB's Huntington's disease has resulted in an acquired brain injury, atherosclerosis, and dementia, and that QLB has experienced deficits in his orientation to person, place and time, his expressive and receptive communication, his capacity for new learning, his susceptibility to influence and his planning and reasoning skills. Dr Wake also testified that QLB was prone to "getting lost" with respect to his thinking patterns and was unable to apply himself to more complex tasks. The Board was satisfied that QLB was unable by reason of his disability to make reasonable judgements in respect of matters relating to his person or circumstances, in particular making a planned and reasoned decision about future health care and accommodation. The Board concluded that QLB was in need of a guardian to make decisions about his future accommodation and health care and to investigate whether there were any feasible options available to him such as re-sentencing, parole, or seeking a Royal prerogative that would be less restrictive than the current sentence and, if appropriate, instructing a legal practitioner to pursue such an option on his behalf. The Board ordered that the Public Guardian be appointed as QLB's guardian and that the powers and duties of the guardian be 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, decisions concerning where the represented person is to live either permanently or temporarily, and obtaining legal advice to investigate whether there are any feasible options available to the represented person such as re-sentencing, parole, or seeking a Royal prerogative that would be less restrictive than the current sentence and, if appropriate, instructing a legal practitioner to pursue such an option on the represented person's behalf. The order was to remain in effect until 30 September 2015.

Orders