SKH (Review Guardianship)
[2019] TASGAB 14
•20 June 2019
CITATION: | SKH (Review Guardianship) [2019] TASGAB 14 |
HEARING DATE(S): | 20 June 2019 |
DATE OF ORDERS: | 20 June 2019 |
DATE OF STATEMENT OF REASONS: | 11 July 2019 |
BOARD: | Ms R Holder, President Ms L Mollross Mr G Dibley |
APPLICATION | Review of Guardianship |
CATCHWORDS: | Guardianship – review – appointment of Public Guardian or family member – continued appointment of the Public Guardian |
LEGISLATION CITED: | Guardianship and Administration Act 1995 (Tas), ss 3, 6, 20, 21. |
PUBLICATION RESTRICTION: | The decision has been anonymised for the purpose of publication |
Reasons FOR DECISION
The Board’s decision
On 20 June 2019, the Guardianship and Administration Board (‘the Board’) heard an Application for Review of a Guardianship Order for SKH. The application was filed by KF and LL.
The initial Guardianship Order was made by the Board on 8 November 2018. The Public Guardian was appointed for 3 years, until 7 November 2019 as SKH’s Guardian with limited powers concerning:
(i)where the Represented Person is to live permanently or temporarily; and
(ii) providing consent to any health care which is in the best interests of the Represented Person; and
(iii) Consent to any healthcare which is in the best interest of the Represented Person or to withdraw such consent[1].
[1] Guardianship and Administration Act 1995 (Tas), s 68.
The Application for Review of Orders required the Board to determine whether the guardianship orders ought be varied, continued or revoked.
The Board determined to vary the Guardianship Order, by changing the powers of the Guardian.
The Applicants have requested a Statement of Reasons in relation to the Board’s decision.
The hearing
The following persons attended the Hearing:
(a) SKH, the Represented Person (‘SKH’);
(b) KF, Joint Applicant (‘KF’);
(c) LL, Joint Applicant;
(d) Mr Sam Shinnick from the Office of the Public Guardian;
(e) Ms Nicky Targett from the Office of the Public Guardian;
(f) Ms Melinda Oogjes, Advocate from Speak Out Association of Tasmania;
(g) Mr Doug Crowe, Client Support Officer from Hobart City Mission; and
(h) Mr Scott Harvey, Support Worker from Hobart City Mission.
In determining the matter, the Board had the following documentation before it:
(a) Application for Review of an Order - Guardianship undated, but subsequently confirmed by the Registry it was signed by the Applicants on 21 May 2019;
(b) Health Care Professional Report from Dr Doug Devereux dated 7 May 2019;
(c) Health Care Professional Report from Dr Adrian Cakra dated 23 May 2019;
(d) Enduring General Power of Attorney [PAXXXXX ] registered 6 December 2010;
(e) Report from the Office of the Public Guardian dated 19 June 2019; and
(f) Email from Bank of Us – account details dated 3 June 2019.
Requirements of the Guardianship and Administration Act (1995)
When the Board determines an Application for Review of a Guardianship Order it needs to be satisfied of the matters in section 20 of the Guardianship and Administration Act 1995 (‘the Act’). They are, that the represented person, in this case SKH:
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 his person or circumstances; and
c. is in need of a Guardian.
The Board must also balance the principles in section 6 of the Act, which are:
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.
Evidence
The Board had before it a report from Dr Adrian Cakra, dated 25 September 2019. Dr Cakra reported that SKH had a disability, being an Acquired Brain Injury resulting from a fall in 2009. He notes that SKH’s disability is static and permanent. The report notes that SKH’s deficits by reason of his disability include orientation to person; place or time; expressive communication; receptive communication; impulse control; capacity for new learning; susceptibility to influence; planning; and reasoning skills. Dr Cakra considers that SKH is unable to make reasonable decisions about where he should live. He does not understand the nature and effect of medical treatment. He would not have the capacity to determine support services that he may access under the National Disability Insurance Scheme (‘NDIS’). He is unable to make reasonable decisions about more general matters such as relationships, visits with friends or relatives and employment. Dr Cakra comments “SKH can’t make decisions for himself”.
The Board also had a Health Care Professional Report from Dr Doug Devereux dated 7 May 2019 diagnosing an Acquired Brain Injury and ‘alcohol related impairment, now abstinent’. He considered that SKH’s disability is fluctuating and commented that if he remains alcohol free and on medication he should remain stable. Dr Devereux reports SKH’s deficits by reason of his disability include orientation to person, place or time; impulse control, capacity for new learning; planning; and reasoning skills.
KF tendered a report during the hearing from Dr Peter Wurth, Psychiatrist dated 31 May 2018. The report stated possibly 6 years ago SKH had a seizure and fell down a flight of stairs, and was treated for a week in ICU. He was also treated for malnutrition and alcoholism. SKH was admitted to hospital on 18 September 2018 and discharged on 29 January 2019. KF reported that since SKH’s discharge from hospital on 29 January 2019 he has been doing well. This was agreed to by others at the hearing.
At the hearing there was some dispute as to areas of need for the appointment of a Guardian. The Applicants expressed different views to each other as to whether there was a need for a Guardian. KF indicated SKH could make his own decisions. LL stated SKH needed a Guardian but had difficulty articulating the need for a Guardian. Mr Shinnick reported that SKH’s circumstances had changed since the initial Order. He indicated that SKH no longer had a need for a Guardian to make decisions as to where he should live. A lease relating to the property SKH lived in had been recently renewed for 12 months. There was no need for a Guardian to make health care decisions. Mr Shinnick submitted that in his view there was a need for an independent Guardian for NDIS issues on the basis he believed the Applicants had impeded SKH’s access to the NDIS. He also flagged a possible need for a power to restrict visitors.
Mr Shinnick told the Board that the Applicants had increased the support hours SKH was to receive from Hobart City Mission, which meant his NDIS funding would have been exhausted by the end of June 2019. SKH’s NDIS Plan did not expire till mid-August. This decision would result in a period of time where SKH had no funded individual support. Mr Shinnick said he had advised the Applicants they would need to put in an urgent NDIS review request to ensure SKH was not left without support and engage a Co-ordinator of Supports as soon as possible. The Board heard evidence that a Co-ordinator of Supports had been engaged and was working to resolve the shortfall of funding. At some point the Co-ordinator of Support’s appointment was terminated. In a Report to the Guardianship and Administration Board (Report) from Mr Shinnick dated 19 June 2019 it was stated:
On 21st of May 2019 I was called by KF and advised that he had taken legal advice. He also advised me that he had spoken with the [Facility] CEO to fire the support coordinator for a ‘massive breach of boundaries.’ This put SKH’s well-being at significant risk…The funding shortfall had the risk of SKH being without 1:1 support from the end of June 2019 until his next scheduled plan review.
KF acknowledged there had been conflict between himself and the Co-ordinator of Supports and he believed she had breached privacy by talking with the Guardian about financial matters. He confirmed he had raised this with her employer and said she had been fired. SKH told the Board that SKH had been without a Co-ordinator of Supports since 8 May 2019.
Mr Shinnick told the Board of allegations of abuse that had been made to him by SKH and staff at Hobart City Mission against KF. Mr Shinnick also addressed this in his Report to the Board:
I had a number of meetings with SKH where he disclosed allegations of physical, emotional, psychological and financial abuse at the hands of his parents. …
SKH told me that on one recent occasion his father found out he had been smoking teabags as he couldn’t obtain cigarettes. KF immediately came round to SKH’s property, grabbed him around the neck or collared him, was yelling at SKH and was genuinely abusive I asked SKH two scaling questions 0 - 10, 0 being unworkable and bad, 10 being perfect, about SKH’s relationship with his father. SKH rated the relationship with his father as ‘3’.... SKH reported that KF’s behaviour makes him feel unsafe in his own home.
Mr Shinnick told the Board he had discussions with a staff member after this incident who indicated KF had been overheard to be abusive to SKH over a prolonged period of time. Mr Shinnick told the Board that he had spoken to SKH after the incident about whether he wanted to report the matter to Tasmanian Police. He advised that SKH was not willing to make a statement to Police.
In response, KF told the Board he had spoken to SKH about giving up smoking and drinking. KF told the Board he had touched SKH on the shoulders and told him to stop smoking as he was worried he would drop a smoke. On another occasion KF said he became aware SKH had been smoking tea bags and he became upset and told him to stop. On this occasion he admitted he pushed SKH back onto a lounge and told him to give up the drinking and stop the smoking. When questioned by the Board about the appropriateness of this behaviour he agreed it was not appropriate behaviour and stated “I was upset, trying to keep him alive and not burn himself to death with a cigarette”. KF said he had never abused SKH and said “I am trying to get him to listen to what I have to say to him”. LL stated “that was temper” when commenting on SKH’s response.
In his Report, Mr Shinnick stated:
The last occasion I met with KF and LL was 25th of May 2019. KF was openly hostile, banging the table with his hands and making a number of legal threats. KF and LL declined to participate in any sort of mediation or counselling with their son and strenuously denied all allegations of abuse and neglect.
LL told the Board they would not agree to Mr Shinnick’s suggestion of mediation because “SKH wouldn’t want a meeting with stranger.” KF said he had told Mr Shinnick “if we can get SKH to ourselves we can sort it out now”.
KF told the Board he wanted to be SKH’s Guardian. When he was questioned as to how he would manage conflict if he was appointed Guardian, KF said he did not believe there would be any conflict. He said “the only problem I have had is with Dorian [Co-ordinator of Supports] and Sam [Guardian]”. He did not believe there would be any conflict with SKH and told the Board “I would step back and let SKH do his own thing.”
Disability
Section 3 of the Act defines disability as meaning:
any restriction or lack (resulting from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function) of ability to perform an activity in a normal manner;
It is clear from the evidence provided to the Board that SKH has a disability in the nature of an Acquired Brain Injury. The Board accepts his condition is currently static and he is abstaining from alcohol.
Unable by reason of the disability to make reasonable judgements in respect of his person or circumstances
The medical evidence is clear that SKH’s disability effects his orientation, impulse control, capacity for new learning and planning and reasoning skills such that he is unable to make reasonable judgements in respect to where he lives, his medical treatment, services and other matters such as visitation with other persons.
Need
The Board determined that there was a need for a limited Guardianship Order. There is a need to have SKH’s NDIS Plan reviewed and to advocate and seek further funding to ensure he is able to access the support he needs so as to continue living in the community.
As all persons, SKH has the right to respectful relationships with others which ensure his safety and wellbeing are paramount. The Board finds on the evidence, that KF has in anger berated SKH and on his own admission, has at least physically pushed him into a lounge. A need exists for the Guardian to have the power to restrict visits, to such an extent as may be necessary and in the best interests of SKH.
SKH’s wishes
At hearing SKH expressed through his Advocate that he liked his accommodation, his health had improved, he was taking his medication and he was sober. Through his Advocate SKH expressed his desire for a harmonious relationship with the Applicants as he didn’t like the tension, and indicated a preference for the Applicants to be his Guardian.
SKH himself said very little at hearing. He acknowledged the incident involving KF yelling at him and pushing him and said it was “natural of course. We all have ups and downs”. He acknowledged it worried him at the time. He did not wish to express why he spoke to his Guardian about this incident.
Can SKH’S needs be met by a less restrictive alternative
SKH does not require an unlimited (full) Guardianship Order. Rather the need for a Guardianship Order relates to making decisions and advocating on SKH’s behalf in respect of the NDIS plan and plan review; and determining issues as to the restriction of visitors. The least restrictive approach is to appoint a Guardian with these powers.
Who should be appointed guardian
The Board considered that while appointment of the Public Guardian would not reflect SKH’s wishes, that appointment would best meet the eligibility criteria in section 21 of the Act.
The Board gives weight to SKH’s desire to enjoy a better relationship with the Applicants. The Board believes this can best be achieved by having an independent Guardian, and thereby reducing the opportunity for conflict between SKH and the Applicants.
Given incidents in the last few months, the Board is not satisfied KF would be suitable for appointment. The Board takes a very dim view of any form of abusive behaviour towards a Represented Person. The Board is not persuaded KF would act in the best interests of SKH if he was appointed Guardian and behave in a way that is measured, respectful and free from abuse.
Further, KF did not appear to understand the role and responsibilities of a Guardian, including understanding the importance of obtaining the wishes of SKH and acting in his best interests.
Conclusion
After hearing an Application for Guardianship
The Board orders:
1. That the Public Guardian (Tas) continue as the Represented Persons Guardian.
2. That the powers of the Guardian are limited to decisions concerning:
(i) advocating and or making any decisions on the Represented Person’s behalf in respect of any NDIS (National Disability Insurance Scheme) planned development, plan implementation and/or plan review or appeal; and
(ii) restricting visits to the Represented Person to such an extent as may be necessary in their best interests and to prohibit visits by any person if the Guardian believes that they would have an adverse effect on the Represented Person.
3. That the Order remains in effect until the 7th day of November 2021.
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