SNT (Review Guardianship)
[2017] TASGAB 15
•3 October 2017
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
Application for review of Guardianship Order
SNT (Review Guardianship) [2017] TASGAB 15
REASONS FOR DECISION
Sandra Taglieri (Chairperson)
Lindi Wall (Member)
Mathew Fasnacht (Member)
Hearing 1 September 2017
Review of Guardianship Order – represented person opposed to continuation of Order – incapacity to make reasonable judgements and lack of insight – guardianship order continued for three years as in best interests of represented person
Guardianship and Administration Act 1995 s.67
Background
The Guardianship and Administration Board (“the Board”) first made an Order appointing a Guardian for SNT on 20 November 2015. That was an Emergency Order and appointed the Public Guardian. An interim Guardianship order was also made on 15 January 2016.
On 10 March 2016, the Board then made a further Order appointing the Public Guardian as SNT’s Guardian with limited powers, until 9 September 2016 (“the Order”).
Before the Order referred to in paragraph 2 expired, the Board conducted a hearing on 2 September 2016 to review the Order, pursuant to section 67 of the Guardianship and Administration Act 1995 (“the Act”). SNT had legal representation for the hearing and Ms Love from the Public Guardian’s office also appeared before the Board.
On 2 September 2016, the Board determined that SNT was still suffering a disability within the meaning of the Act and required a Guardian. The President of the Board who conducted the hearing, gave written reasons and I will not repeat those.
The formal Order made on 2 September 2016 was to remain in effect until 1 September 2017 and appointed the Public Guardian with limited powers concerning decisions about where SNT live and healthcare (“the further Order”).
Application and hearing on 1 September 2017
With the expected expiry of the further Order referred to in paragraph 5, the Board gave notice of a hearing to conduct a review of the further Order pursuant to section 67 of the Act.
The hearing to review the further Order took place on 1 September 2017. SNT appeared and provided information to the Board members, as did Ms Love, the Guardian.
The Board also received in evidence a written report from Ms Love dated 22 August 2017. It identified that in the preceding 12 month period, she had made 6 decisions on behalf of SNT, the last of which was as recently as 28 June 2017. These decisions mainly related to where SNT would reside and medical or health care issues.
Ms Love’s report and her oral information at the hearing confirmed that from her interactions with SNT, she considered that there had not been improvement in SNT’s disability and she continued to lack insight into her cognitive impairments. Ms Love was of the view that the terms of the further Order needed to be continued to keep SNT safe, physically and psychologically. She considered that SNT had become increasingly frail.
10. The Board did not receive any new medical or psychiatric opinion, but had before it the past reports prepared in relation to SNT, being the report of Dr Ratnagobal of 26 November 2016 diagnosing dementia and a report of Dr Morrissey of 7 July 2016, which extensively detailed the cognitive deficits suffered by SNT.
11. SNT gave a considerable amount of information to the Board members about her past work life and how capable she had been. She also made it abundantly clear that she opposed the continuation of the Guardianship order, even in limited terms. Her statements to the Board were rambling, confused and focussed on the past, rather than her present circumstances. Her statements demonstrated that she had no insight and understanding about why the past orders had been made.
12. There was a reluctant acceptance by SNT of the past involvement of Ms Love as her Guardian and the interaction between both at the hearing was respectful.
13. The information provided by Ms Love and SNT identified that SNT was now residing at Glenorchy Gardens and was happier to be closer to services and shops. Although settled in this accommodation, SNT’s lack of insight and ability to appreciate her need for care and support concerned the Board. SNT was not able to coherently express how she would manage to care for herself, comprehend and communicate effectively about her health and treatment needs or make reasonable decisions about these, without the assistance of a Guardian. It was quite apparent that without an Order, SNT would not seek out and accept assistance.
Conclusion
14. The Board was constituted by three members for the hearing, one of whom was a specialist medical member. He had specialised knowledge about the nature and effect of SNT’s disability which assisted in evaluating the evidence and information before the Board. Given the permanent nature of the diagnosis of dementia, with known natural and slow progression, the Board was satisfied that SNT continued to suffer disability and the defects caused by it were those described in the report of Dr Morrissey.
15. Further, the Board had no information before it that was capable of allaying concerns about risk of harm to SNT if she did not have an alternate decision maker in relation to accommodation, medical and healthcare issues.
16. Accepting the information provided by Ms Love and with the benefit of observing SNT’s conversation, demeanour and behaviour, the Board was satisfied that it was in her best interest to continue the limited Guardianship Order.
17. The Board did explain to SNT that there was no evidence before it that she no longer had a disability or that there was no longer a need for a Guardian, but it is highly unlikely that SNT had the capacity to understand or retain what was explained to her.
18. It was the view of the Board that it was inappropriate to allow the existing order to lapse, when it had no persuasive medical opinion that SNT would no longer be at risk of harm without a Guardian. The Board considered it desirable to align the duration of the further Guardianship order, to the date of expiry of the Administration Order that had been previously made in respect of SNT. This was desirable to avoid separate review hearings in the future.
The Board Ordered that:
1. That the Public Guardian continue as the represented person’s guardian.
2. That the powers and duties of the guardian are limited to:
(i) decisions concerning where the represented person is to live either permanently or temporarily, and
(ii) 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; and
(iii) providing consent to any reasonable measures required to convey the represented person to the place of residence as determined by the guardian.
3. That the order remains in effect to 9 March 2019
Sandra Taglieri
MEMBER
Dated: 3 October 2017
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