SKH (Guardianship)

[2009] TASGAB 1

GUARDIANSHIP AND ADMINISTRATION BOARD
Burnie

SKH on the application of Mental Health Services North West

Neutral Citation: SKH (Guardianship) [2009] TASGAB 1

Melanie Bartlett (Chairman)
Leon Peck (Member)
Mary Davies (Member)

Guardianship – guardian’s role in consenting to health care – capacity to make reasonable decisions
Guardianship and Administration Act 1995 section 20, 69

REASONS FOR DECISION

An Application dated 21^st January 2009 was filed by Dr A with a Health Care Professional Report of the same date, seeking a Guardianship Order for SKH.

In accordance with section 69 of the Guardianship and Administration Act 1995 (the Act) notices of the hearing were sent to SKH, his father KH, the applicant, Dr B (Psychiatric Registrar), QX (Social Worker), EU, JI (Case Manager) and the Public Guardian. This matter was listed for hearing at Spencer Clinic, North West Regional Hospital, at 2:30pm on 3^rd February 2009.

At 2:40pm the three Guardianship and Administration Board members, QX, Dr B and JI were all present.  Neither SKH nor anyone on his behalf were present.  The Board’s file indicated that SKH had been sent a copy of the Application on 21^st January 2009 and JI advised the Board that he had spoken with SKH to confirm the date and time of the hearing.  The Board resolved to conduct the hearing in the absence of SKH.

The Board outlined the 3 threshold issues for the Board in any Guardianship Application, namely that the person named in the Application has a disability, that that disability leads to an inability to make decisions regarding guardianship matters and, if both those are present, that there is a need for a Guardian to be appointed.

Dr B, who was representing Dr A who was unavailable, outlined SKH’s medical history and advised that he has a long standing mental illness SKH having been diagnosed with Schizo Affective disorder when he was 17 years of age, approximately 10 years ago.  Dr B gave evidence regarding SKH’s history of noncompliance with medication regimes, his failure to attend appointments and his extreme lack of insight into his condition.

SKH was discharged from Spencer Clinic on 23^rd January 2009 on a Community Treatment Order under the Mental Health Act 1996.  Dr B also advised the Board that when SKH was taking the prescribed medication he was able to function well and did well.  However, SKH had unrealistic concerns about side effects of the medication which had no major side effects.  Whilst SKH is on a Community Treatment Order he cannot be administered depot injections against his will.

QX also advised the Board of his knowledge of SKH’s medical history and confirmed that when SKH was previously on depot injections there was a significant improvement in his heath and life style.  His evidence was that when SKH was taking his medication he was bright, intelligent and articulate.  However, if he fails to take his medication he becomes very unwell and is usually brought to the hospital by the Police in an extremely psychotic state.  It then takes an extended period about six weeks for him to become well again.

On his most recent discharge SKH was still not well and is now refusing medication.  All those attending the hearing confirmed that the application was made only because they wanted to help SKH.

QX referred to a recent series of incidents where SKH had stalked a staff member resulting in her being off work for a month.  No legal action was taken against SKH.  QX indicated that this Application for a Guardianship Order was an attempt to get help for SKH and to keep him out of the forensic mental health system.

SKH is currently living independently in Tasmania Housing Department housing and is reluctant to be involved with Mental Health Services which results in his problems not being identified until he is severely ill.  SKH has poor social support.  QX also expressed concern that SKH’s reputation may become compromised to the extent that he will not have the future which is otherwise possible for him.

Dr B advised that SKH has never had a “normal period” when he is non-compliant with his medication and he then becomes a serious risk to himself and to others. If a Guardianship Order was made, Dr B expressed the opinion that it would be in SKH’s best interests because if he was non-compliant with his Community Treatment Order he could not be admitted to hospital and/or required to have his medication.

There was no evidence that would support the appointment of an administrator for SKH.

SKH’s wishes are clearly that he does not want to take medication for his condition.  He has made those wishes clear to the staff at the Spencer Clinic.  Less restrictive alternatives have been attempted by the hospital staff and by the use of a Community Treatment Order.  However, these alternatives have been unsuccessful in creating a situation where SKH is compliant with his medication.

Taking into account the evidence at the hearing the Board determined that SKH had a disability, namely psycho-affective disorder, and that consequently he was unable to make reasonable decisions regarding his medical treatment.  This arose also because of SKH’s total lack of insight into his condition and his need for treatment.

Having satisfied itself that SKH has a disability and an inability to make appropriate decisions, the Board then determined that there was a need for the appointment of a guardian to make decisions about medical treatment.  However that appointment is to be limited to giving the Guardian authority to make decisions regarding medical treatment and medication which will be sufficient to met SKH’s needs and be the least restrictive alternative in the circumstances. 

The orders of the Board are:-

1. That Public Guardian be appointed as the represented person’s guardian.
2. That the powers and duties of the guardian are limited to decisions concerning consent to any health care or prescribing of any medication that is in the best interests of the represented person and to refuse or withdraw consent to any such treatment.
3. Pursuant to section 28(2) the Public Guardian is empowered to authorise any employee, officer or agent of the Crown in the Department of Health and Human Services to take such measures to ensure that the represented person complies with any decision of the guardian, including but not limited to restraining the represented person in order to administer the medical treatment as consented to by the guardian.
4. That this order remains in effect until the 2^nd February 2010 with a review to be held in prior to the expiration of the order.  

Melanie Bartlett
Deputy President

Guardianship & Administration Board