SNC (Review of Guardianship)
[2016] TASGAB 10
•12 October 2016
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
SNC (Review of Guardianship) [2016] TASGAB 10
REASONS FOR DECISION
Rowena Holder (Chair)
Hearing 2nd September 2016
Review Guardianship – continue with current arrangements
Guardianship and Administration Act 1995 s. 6, 20, 67, 73A
On 20th November 2015, the Guardianship and Administration Board (the Board) made an emergency order for guardianship in respect of SNC appointing the Public Guardian. On 15th January 2016 the Board after hearing an application for guardianship made an interim guardianship order pursuant to section 73A of the Guardianship and Administration Act 1995 (the Act) in respect of SNC and adjourned proceedings sine die to allow further medical evidence to be obtained. On 10th March 2016 the Board after hearing an application for guardianship made a guardianship order pursuant to Part 4 of the Act.The Order appointed the Public Guardian as SNC’s guardian and limited the powers and duties of the guardian to decisions concerning where SNC was to live, providing consent to any reasonable measures required to convey SNC to her place of residence and consent to any health care and refuse or withdraw consent to any treatment, in the best interests of SNC. The guardianship order was to remain in effect to 9th September 2016.
On 2nd September 2016 the Board reviewed the guardianship order for SNC under Section 67 of the Guardianship and Administration Act 1995. SNC together with her legal representative from the Legal Aid Commission of Tasmania, Ms Sarah Campbell attended the hearing. Ms Liz Love delegate from the Office of the Public Guardian and TM, SNC’s cousin were also in attendance.
SNC’s legal representative has requested a Statement of Reasons in relation to the review of guardianship.
At a review of a guardianship order the Board needs to determine whether the order should continue, be varied, revoked or allowed to lapse. The Board needs to consider the principles of section 6 of the Act when reviewing any order and determine whether the requirements in section 20 of the Guardianship and Administration Act 1995 (‘the Act’) are still met.
“20. Guardianship order
(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.
(2) In determining whether or not a person is in need of a guardian, the Board must consider whether the needs of the proposed represented person could be met by other means less restrictive of that person's freedom of decision and action.
(3) The Board must not make an order under subsection (1) unless it is satisfied that the order would be in the best interests of the proposed represented person.
(4) ... (5) ... (6) ...”
Subsections 20(2) and (3) repeat two of the three underlying principles of Section 6 of the Act.
The Board had a Health Care Professional Report before it, from Dr K Ratnagobal of the Roy Fagan Centre dated 26th November 2016 prepared in support of the earlier emergency guardianship application. Dr Ratnagobal stated that SNC “was suffering from dementia” and “doesn’t understand she has an illness and “doesn’t have the ability to make any judgments.”
The Board also had a medical report before it from Dr Martin Morrissey, Old Age Psychiatrist undated and received by the Office of the Public Guardian on the 07 July 2016. Dr Morrissey reviewed SNC on the 21st June 2016. Dr Morrissey stated in his report:
“On cognitive testing, SNC was partly disoriented to time, she had impaired short term memory, impaired visuospatial functioning, and performed poorly on tests of frontal lobe functioning such as trail making test and Luria sequencing.
In light of SNC’s previous functioning, her cognitive impairment and apparent lack of recognition of her current care needs, I do not believe she has the capacity to make informed decisions about her accommodation and care needs.”
SNC’s legal representative indicated that she had sought an independent review and medical report from Dr David Tuck as to SNC’s capacity but did not have instructions to release this report to the Board.
Ms Campbell indicated that she did not have any medical evidence she was able to put to the Board to refute Dr Morrissey’s finding that SNC lacked capacity. Ms Campbell indicated she may seek a further review of SNC’s capacity at some later stage. On enquiry by the Board, Ms Campbell did not seek an adjournment.
The Board was satisfied that SNC continues to be a person under disability and because of that disability is incapable of making reasonable judgments in respect of matters relating to her person or circumstances.
10. Ms Love stated that she had met with SNC and her advocate in April 2016 and at that time SNC had expressed a wish to live independently and set up a house with her own furniture. The Board had evidence that SNC was a resident at Strathaven Nursing Home and had been a resident since her discharge from Roy Fagan Centre in March 2016.
11. Ms Love indicated that she had requested a medical review of SNC by Dementia Behaviour and Management Advice Services. The review was conducted by Dr Morrissey. The Office of the Public Guardian sought an opinion from Dr Morrissey as to whether SNC may be able to manage in a less restrictive environment.
12. In his report, Dr Morrissey stated that:
“I think it is quite possible that SNC’s care needs could be met in a less restrictive option such as supported accommodation plus a community aged care package. The potential risks in such a setting would be that she took up drinking alcohol again and/or that she did not accept external assistance. I think the risks of both these events are quite high. I do wonder if within her current accommodation setting SNC might be given some more freedom. Unless there is strong evidence to the contrary, it would seem reasonable to give SNC a trial at having unescorted leave from the facility. This could be done in staged degrees for example a one hour trip via taxi to the local shopping centre with a prearranged pick up time.”
13. There was discussion at the hearing as to the suitability of SNC’s accommodation, the affordability of accommodation and SNC’s unhappiness at being in her current accommodation. Ms Campbell accepted that it was not the Board’s role to determine where SNC should be accommodated or the affordability of such accommodation. The Board heard from SNC and her legal representative that SNC’s wishes were that there be no further guardianship order in place. Ms Campbell indicated that she was not in a position to refute the evidence from Dr Morrissey.
14. The Board heard evidence from Ms Love that there was a continuous need for a guardian. Ms Love indicated that the issues pertaining to accommodation needed to be explored further in light of Dr Morrissey’s report. Ms Love indicated that a transitional phase of allowing SNC some greater freedom than what her current arrangements allow would require the ongoing involvement of a guardian. Ms Love also indicated that the ability of a guardian to consent to any reasonable measures required to convey SNC to her place of residence was required during the transitional phase.
15. Ms Love indicated that SNC also required a guardian in respect of healthcare matters. She indicated that SNC in the last 7 months had undergone medical investigation of a lump on her jaw which required ongoing assessment and monitoring. She indicated that SNC had exhibited confusion at the time of investigation.
16. Ms Love supported a further order being made, in the same terms as the previous order, for a period of 12 months. Ms Campbell indicated that she anticipated the Board would make an order in terms of the existing order. The Board was satisfied that a need for a guardian still exists.
17. After hearing a review of a guardianship order in respect of SNC (the represented person), the Board was satisfied that the represented person:
·is a person with a disability, and
·is unable by reason of the disability to make reasonable judgments in respect of her , and
·is in need of a guardian.
THE BOARD ORDERS
1.That the Public Guardian continue as the represented person’s guardian.
2.That the power and duties of the guardian are limited to decisions concerning:
(i)decisions concerning where the represented person is to live whether permanently or temporarily, and
(ii)providing consent to any reasonable measures required to convey the represented person to the place of residence as determined by the guardian, and
(iii)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.
3.That the Order remains in effect to 1 September 2017.
Rowena Holder
President
Date: 12/10/2016
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