SGX (Emergency Guardianship)

[2018] TASGAB 32

GUARDIANSHIP AND ADMINISTRATION BOARD

SGX (Emergency Guardianship) [2018] TASGAB 32

STATEMENT OF REASONS

Board: President Rowena Holder

Date of order:   30 November 2018

Emergency Guardianship order - meaning of ‘renewal’ – urgency - renew emergency order
s. 65 and s. 6 of Guardianship and Administration Act 1995
FLI [2018] TASGAB 29

BACKGROUND

1. On 2 October 2018, the Guardianship and Administration Board (‘the Board’) made an Emergency Guardianship Order for SGX, the Represented Person which remained in effect to 30 November 2018. The Board appointed the Public Guardian with powers and duties limited to:

   (1)   decisions concerning where the Represented Person is to live whether permanently or temporarily, and

   (2) pursuant to section 28 of the Guardianship and Administration Act 1995, if the guardian has reasonable grounds to believe that the Represented Person is likely to suffer damage to his physical, emotional or mental health or wellbeing unless immediate action is taken, the Guardian and the Commissioner of Police (or his delegate) and/or the Secretary of the Department of Health and Human Services (or his delegate) may take the following measures or actions to ensure that the Represented Person complies with any decision of the guardian in the exercise of the powers and duties conferred by the order:

   (i)  take to and keep the Represented Person at the place of accommodation as determined by the guardian.

   (ii) return the Represented Person to that place of accommodation should he leave it; and

   (iii)restraining the Represented Person, only if required, to ensure the Represented Parson’s safety.

2. A ‘Report to the Board’ dated 26 November 2018 (‘the Guardian’s Report’) from the Office of the Public Guardian, authored by Guardian Ms Maddy Russell, was received by the Board on 27 November 2018. 

3. On 30 November 2018 the Board renewed the Emergency Guardianship Order for a further 28 days. The new Order will remain in effect to 28 December 2018.

4. A request for Statement of Reasons has been made by the Guardian Ms Russell in relation to the extension of the Emergency Guardianship Order.

LEGISLATION

1. Part 8, s 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 a guardianship 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.

   (3)The Board may make an order under this section of its own motion or on request by any person whom the Board considers to have a proper interest in the matter.

   (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

   (c) …

   (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.

2. The Board can renew an emergency order, once, pursuant to s 65(5):

   (5) An order under this section –

   (a) remains in effect for such period as the Board determines but not exceeding 28 days; and

   (b) may be renewed but only once for a further period not exceeding 28 days.

GROUNDS FOR A GUARDIANSHIP ORDER

7. Section 20 of the Act provides:

(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.

1. The original Application for an Emergency Guardianship Order dated 2 November 2018 filed by a social worker at the Royal Hobart Hospital was accompanied by a Health Care Professional Report from Dr Subhranil Das (‘Dr Das’ Report’). The Application stated that SGX was found wandering by Police in a confused state and was brought to the Hospital by Tasmania Police. According to Dr Das’ Report SGX had an initial diagnosis of ‘cognitive impairment – unclear if dementia or delirium, at this stage, needs further evaluation’ and ‘SGX is unable to make reasonable decisions regarding his lifestyle and accommodation. SGX cannot remember where he lives.’ Further Dr Das reports:

   SGX is currently attempting to leave the ward and states he wants to return home. He was not able to provide his address or explain how he would get there. SGX has been aggressive towards staff who have not been able to constantly redirect him. Due to his current level of confusion if SGX was to leave the ward I believe that he would be at risk of injury or misadventure.

2. The Guardian’s Report, stated that ‘SGX has been diagnosed with vascular dementia by Dr Alison Cleary’ and ‘SGX continues to lack capacity to make accommodation decisions as per the Health Care Professional Report provided by Dr Cleary. SGX lacks insight into the level of support he requires with daily activities.’ The Guardian’s Report indicated there was a need for a guardian as ‘SGX has transferred to the RFC [Roy Fagan Centre] Jasmine Unit for rehabilitation and discharge planning…SGX’s views have fluctuated regarding alternate accommodation options.’ The Board is satisfied that there may be grounds to renew the Emergency Guardianship Order as it has Dr Das’ Report commenting on disability and incapacity and reference has been made to a diagnosis by Geriatrician, Dr Alison Cleary. Without the benefit of a hearing, the Board accepts this information on a prima facie basis. The Board also has the Guardian’s Report which identifies a need for a guardianship order, which the Board accepts on a prima facie basis. 

URGENCY

10. Further the Board is satisfied it is proper to renew the Emergency Guardianship Order, by reason of urgency. The urgency is the need for ongoing detainment of SGX at the Roy Fagan Centre. He is currently being detained for his ongoing rehabilitation and for discharge planning, on a background of fluctuating views about his discharge destination, on a history of attempting to discharge from the Hospital immediately prior to his detainment at the Roy Fagan Centre. SGX is a person incapable of giving informed consent to his admission and detainment at the Roy Fagan Centre and therefore a guardian can provide that substitute consent.  
11. Accordingly, before the original Emergency Guardianship Order expired on 31 October 2018, the Board renewed the Emergency Guardianship Order for a further 28 days with the same powers.
12. While the Board is not bound by its previous decisions, those decisions ought to be followed as a matter of consistency and comity, unless a substantial error in reasoning can be identified in forming a different view, or if particular circumstances require it to be distinguished. The Board adopts the interpretation of ‘renew’ preferred by the Board in FLI [2018] TASGAB 29, and in particular:

12. Section 65(5) states an order can be renewed for a single further period of 28 days. It does not provide the power to vary the order by adding additional powers.

13. The word renew is not defined in the Act. The Board considered the plain English meaning. The Macquarie Dictionary (2016) defines renew as:

1.  to begin or take up again, as acquaintance, conversation, etc.
2.  to make effective for an additional period: to renew a lease.
3.  to restore or replenish: to renew a stock of goods.
4.  to make, say, or do again.
5.  to revive; re-establish.
6.  to recover (youth, strength, etc.).
7.  to make new, or as if new, again; restore to a former state.
–verb (i)
8.  to begin again; recommence.
9. to renew a lease, note, etc.

Therefore applying the ordinary meaning of the word renew and adopting the wording of the Macquarie Dictionary, the legislation enables the Board to, ‘makes effective for an additional period’ the emergency guardianship order, that is for a further 28 days.

14. There is nothing in section 65 that expressly enables the Board to vary or amend the original emergency order and section 65(5)(b) does not contemplate more than a limited renewal power. It would be inconsistent with ordinary principles of statutory interpretation to attempt to read into this section a power to vary the original orders.

13. In the event that the circumstances of a represented person (subject to an emergency order) changed sufficiently as to warrant removal or additional powers being granted to a guardian that could in principle be done under s 65(1), provided that the Board was satisfied ‘to do so by reason of urgency.’
14. The Guardian’s Report provides:

SGX is no longer objecting to his admission to hospital (Jasmine Unit) and has remained settled since his transfer to RFC. I do not believe the authority under section 28 is required.

15. The Board is not satisfied urgent circumstances exist for SGX to vary the order. SGX is safe and being cared for at the Roy Fagan Centre. He is not at risk of harm or neglect. The variation of the order by removing s 28 powers identified in the Guardian’s Report, do not satisfy the urgency requirement.

16.If an application for guardianship pursuant to s 20 of the Act is made, which the Guardian identified in the Guardian’s Report as being possible, then specific powers can be identified by the Guardian in the Application. This is the appropriate process where there is no urgency for the immediate safety and care of the Represented Person. It is a process that ensures procedural fairness to the Represented Person and to other parties. Procedural fairness affords the represented person, the parties and other persons with a proper interest in the matter to receive notice of the hearing and to present relevant material to the Board in person or through evidence and, for the Represented Person, the right to consider whether or not legal representation or advocacy is required.

SECTION 6 PRINCIPLES

17. Finally, s 6 of the Act provides:

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.

18. Section 6 is to be read in the context of the entire Act, and in these particular circumstances particularly in the context of Part 8 – Emergency orders. For reasons of urgency the Board is not required to give notice to a person or hold a hearing and can proceed in making any order or renew an order. Section 6 principles were applied by the Board in the making of the Emergency Guardianship Order after Registry enquiries had been made with the Applicant. The Board made an Order with limited powers which were the least restrictive of SGX’s freedom of decision and action, and in the best interest of SGX. SGX’s views were unknown as Dr Das had determined discussing the application with SGX would put the Applicant at risk of verbal and physical aggression, given his current level of agitation. The principles of s 6 were considered in the context of the evidence submitted for urgent circumstances. Similarly s 6 principles must be considered in the context of urgency when the Order is being renewed. Any variation to the Order, must only be ‘for reasons of urgency,’ which the Board was satisfied did not exist.

19. The terms of the emergency guardianship order and in particular the powers under s 28, do not compel the guardian to use all available powers if those powers in current circumstances is not required. The s 6 principles and the wording of s 28, and indeed the Order would suggest that the guardian ought not to rely on the powers unless necessary.

DETERMINATION

20. The Board is satisfied there are grounds to renew the Emergency Guardianship Order.

The Board renews the Order in the same terms, as follows:

1.    That the Public Guardian be appointed as Guardian for the Represented Person.

2.    That the powers and duties of the guardian are limited to decisions concerning where the represented person is to live whether permanently or temporarily.

3. Pursuant to s 28 of the Guardianship and Administration Act 1995, if the Guardian has reasonable grounds to believe that the Represented Person is likely to suffer damage to his physical, emotional or mental health or wellbeing unless immediate action is taken, the Guardian and the Commissioner of Police (or his delegate) and/or the Secretary of the Department of Health and Human Services (or his delegate) may take the following measures or actions to ensure that the Represented Person complies with any decision of the Guardian in the exercise of the powers and duties conferred by the order:

(i)   take to and keep the Represented Person at the place of accommodation as determined by the Guardian;

(ii)     return the Represented Person to that place of accommodation should he leave it; and

(iii)   restrain the Represented Person, only if required, to ensure the Represented Parson’s safety.

4.    The Orders remain in effect until 28 December 2018.