SBL (Guardianship)

[2012] TASGAB 19

GUARDIANSHIP AND ADMINISTRATION BOARD
Hobart

SBL - application for guardianship by the Department of Health and Human Services

Neutral citation: SBL (Guardianship) [2012] TASGAB 19

REASONS FOR DECISION

Kim Barker (Chair)
Date of hearing: 17 July 2012

Guardianship – decisions re accommodation – Board not satisfied that brother would necessarily make decisions in best interests of RP due to very recent re-establishment of relationship after 20 year estrangement

Guardianship and Administration Act1995

1. SBL has been hospitalised involuntarily at the Mental Health Facility since April 2012, under a Mental Health Act 1996 (MHA) continuing care order with an expiry date of 19 July 2012.  An emergency guardianship order appointing the Public Guardian to make decisions regarding health care and treatment was made on 26 April 2012 and extended for a further 28 days on 24 May 2012.

2. The guardianship application was heard at the Mental Health Facility in Hobart on 17 July 2012.  The following people were in attendance:

   ·     SBL

   ·     CL

   ·     Colin Brett, CNC, Mental Health Facility

   ·     Dr Joanna Bakas

   ·     Sarah Campbell, Legal Aid Commission

   ·     Lisa Warner, Public Guardian

   ·     Britt Bullard, investigation officer Guardianship and Administration Board

   ·     Mr Lee Perry, compliance officer Guardianship and Administration Board.

3. I had before me and took into account the following documentation:

   ·     The application prepared by Ms Read, dated 5 June 2012

   ·     Health care professional report prepared by Dr Jonathon Lane, dated 5 June 2012

   ·     Application for emergency guardianship prepared by Dr Corbu, psychiatrist at the Spencer Clinic, received by the Board 26 April 2012

   ·     Reports by the Public Guardian dated 23 May 2012 and 19 June 2012

   ·     Board investigator report dated 16 July 2012.

4. Section 20 of the Guardianship and Administration Act 1995 (the Act) enables the Board to appoint a guardian in respect of the person for whom an application was made as follows:

   (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.

5. The Board must also balance the principles in section 6 of the Guardianship and Administration Act 1995:

   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.

Is SBL a person with a disability?

1. The health care professional report by Dr Lane states that SBL has a psychiatric disability – paranoid and persecutory delusions and manic episodes – and mild cognitive impairment, due to dementia.  Dr Corbu, in the emergency application, stated that SBL had an “acute psychotic presentation” and a prior diagnosis of dementia.  On the basis of these reports and in the absence of contrary evidence I was satisfied that SBL has a disability.

Is SBL, because of that disability, unable to make reasonable judgements about any matters relating to his person or circumstances?

1. Dr Corbu’s report states that SBL had poor judgement, no insight, was refusing medication and unable to consent to treatment.  Dr Lane’s report also refers to SBL’ lack of insight and his refusal to acknowledge any problems, including that his wife had left him and that he may not have any accommodation to return to.  He said SBL’ cognitive impairment impacted on his planning and reasoning, and that this was exacerbated by his mental illness, which resulted in poor impulse control and poor judgement, including episodes of violence and aggression. 

2. Ms Read’s application stated that SBL’ wife had left him, following a three year history of psychosis during which time he experienced delusions about his wife and was violent towards her.  She had initiated divorce and property settlement proceedings, which were likely to result in the sale of their home.  The evidence presented by Dr Bakas at the hearing was that SBL would likely require supported accommodation when ready for discharge from the Mental Health Facility.

3. There was no dispute that SBL lacks the capacity to make reasonable decisions regarding his accommodation and health care, and I accordingly found so.

Does SBL need a guardian?

1. Currently SBL is residing in a secure mental health facility.  He has been assessed as lacking the capacity to consent to his hospitalisation, and, because it is a secured building, the facility requires authority to detain him there, either by way of a MHA continuing care order or substitute consent by a guardian.  In addition, it is likely that further decisions regarding SBL’ on-going accommodation, following discharge from the Mental Health Facility, will be required.  SBL has expressed a lack of understanding that his former home may no longer be available to him, and, in any case, he may not have the capacity to live independently.  His brother, CL, has also proposed taking him to his home in New South Wales to live with him. 

2. The reports of the Public Guardian indicate, and staff at the Mental Health Facility confirm, that SBL is now compliant with his medication.  Ms Warner confirmed that her office had been required to make decisions about medication early in SBL’ admission, but he experienced some improvement after commencing medication and thereafter has been happy to take it.  SBL confirmed that he believes the medication has been beneficial and he is happy to comply with his doctors’ recommendations.  Dr Bakas said that a recent occupational therapy assessment indicated that there would be a risk of medication mismanagement or non-compliance outside of a structured setting such as that offered by supported accommodation.

3. I was satisfied that a guardian is needed to make decisions regarding accommodation options that are in SBL’ best interests.  I was not satisfied that a guardian is required to make health care decisions: I considered that such decisions, if required in the future, could possibly be undertaken by CL as ‘person responsible’.

SBL’s wishes, his best interests and the least restrictive alternative:

1. SBL stated that he would like his brother to help him to make decisions.  These wishes will be met at least to the extent that his brother may be his ‘person responsible’. 

2. The evidence presented at the hearing was that CL and SBL have only just re-established contact after a nearly-20 year estrangement.  CL has offered to take on the role of guardian and to take his brother home to live in Sydney with him.  CL had only just arrived in Tasmania on the morning of the hearing so he had had no opportunity for any discussions with the medical team regarding the role of guardian or what his brother’s support and care needs would be.

3. I was not positively satisfied that CL would necessarily be able to make independent decisions in his brother’s best interests regarding where SBL should live.  The relationship has only very recently recommenced after a lengthy period of estrangement, and CL has made both offers – to take on the role of guardian, and to have his brother move to Sydney to live with him - without fully exploring what the implications might be, either for himself or for his brother.  In these circumstances, I decided that it is in SBL’ best interests for an independent guardian to make decisions regarding accommodation.  It is important that decisions about where he lives are not made hastily and based on emotion, but with proper attention to the extent of his care needs. 

4. The least restrictive alternative is not to include, at this point, powers regarding decisions as to medical care and treatment.

5. The parties to the hearing were made aware of the possibility of CL applying to the Board for review of the order if, in the future and once the relationship between the brothers had been properly re-established and after proper consultation with the treatment/care team, he wished to be considered for appointment in the place of the Public Guardian.

The Board’s Decision:

The Board was satisfied that SBL

• is a person with a disability, and

• is unable by reason of the disability to make reasonable judgements in respect of his accommodation, and

• is in need of a guardian.

THE BOARD ORDERS

1. That the Public Guardian be appointed as SBL’ guardian.

2. That the powers and duties of the guardian are limited to where SBL is to live, whether permanently or temporarily.

3. That the order remains in effect until 16 July 2015.

K Barker
9 August 2012