TI (Guardianship)
[2012] TASGAB 35
•20 November 2012
GUARDIANSHIP AND ADMINISTRATION BOARD
NEW NORFOLK
TI – Application for the Appointment of a Guardian by Mental Health Services
TI (Guardianship) [2012] TASGAB 35
REASONS FOR DECISION
Anita Smith (President)
Date of Hearing: 20 November 2012
Guardianship – person with chronic schizophrenia – resident at approved hospital within the meaning of the Mental Health Act 1996 – accommodation options – ‘voluntariness’ – serious risks to proposed represented person in unsupported accommodation
Guardianship and Administration Act 1995, s 20
EKR (Guardianship) [2009] TASGAB 2
TI is a 57 year old woman who presently lives at XXXX in the XXXX which is an approved hospital under the Mental Health Act 1996. Mental Health Services, through social worker, Mary Rayner, applied for the appointment of a guardian for TI on 3 October 2012. The application specifically related to issues about TI’s accommodation at that facility.
TI has been the subject of an administration order appointing the Public Trustee continuously since 2004. She was the subject of a guardianship order appointing the Public Guardian between August 2005 and September 2009. From time to time, she has also been the subject of orders under the Mental Health Act 1996 the most recent of which was cancelled in July 2012.
In assessing the application pursuant to section 20 of the Guardianship and Administration Act 1995 (the Act), the Board must enquire as to whether:
(a)TI is a person with a disability,
(b)Her disability renders her incapable of making reasonable judgments about her person and circumstances,
(c)Whether she is in need of a guardian, and
(d)The eligibility of any nominees for appointment as guardian.
The Board convened a hearing on 16 November 2012 at which the following people attended:
TI – Proposed Represented Person
Ms. Amanda Ripper – Advocate, Advocacy Tasmania Inc.
Ms. Mary Rayner – Applicant, Social Worker, Mental Health Services
Mr. Rodney Triffett – Clinical Nurse Consultant, XXXX
Mr. Scott Glennie – Case Manager, Community Mental Health Nurse
Mrs. Margaret Colville – Deputy Public Guardian
Ms. Danielle Lansdell – Public Trustee
Ms. Jo McGuiness – Public Trustee
Ms. Elizabeth Dalgleish – GAB Investigator
LT – Observer (student)
The Board had the following documents available to it prior to the hearing:
Application completed by Ms. Rayner
Health Care Professional Report completed by Dr. Ratnagobal
Investigator’s report dated 9 November 2012These documents were also available to TI’s advocate prior to the hearing.
TI joined the hearing late, however the Board explained the proceedings that she had missed and her advocate had participated on her behalf to that point.
Does TI have a disability that renders her incapable of making reasonable judgments about her person and circumstances?
Dr. Ratnagobal’s report dated 26 September 2012 confirms that TI has a chronic schizophrenia, a diagnosis of long-standing. His view is that she is not able to make any reasonable decisions. In particular he is of the opinion that she is not capable of making reasonable decisions about where she lives. TI’s advocate did not take objection to the report, but did note that TI does not wish to live at XXXX.
Ms. Rayner gave evidence that TI has made an application for housing with Housing Tasmania without appreciating the need for support that she would require if she lived independently. Mr. Glennie gave evidence that previous attempts by TI to live independently have failed, even where support has been provided. However both agreed that in her desire to leave XXXX, she does not appreciate the risks that she might face without adequate supports. The reason she does not appreciate those risks is due to her disability. This evidence is consistent with Dr. Ratnagobal’s opinion that TI experiences deficits in impulse control and new learning, that she is susceptible to influence and lacks planning and reasoning skills.
The Board accepted Dr. Ratnagobal’s evidence and the evidence or Ms. Rayner and Mr. Glennie as evidence that TI is incapable by reason of her disability of making reasonable decisions about where she lives permanently or temporarily.
Is TI in need of a guardian?
As noted above, the application related solely to decisions about where TI lives permanently or temporarily, therefore the Board assessed the need for a guardian in relation to that issue.
The applicant noted that TI has made the application for unsupported public housing through Housing Tasmania. This is not the first time she has made such an application. However, due to a change in practice by Housing Tasmania, that service will not decline an application for public housing merely on the basis of an inability of the potential tenant to reside in their premises without support. There is, therefore, a possibility that unsupported public housing will be offered to TI meaning there will be a choice to be made between supported accommodation and an independent tenancy. The applicant fears that this could have a devastating impact on TI as previous attempts have exposed her to risks and significantly set back her mental state.
The reason TI requires support is that she continuously impulsively engages in bizarre and anti-social behaviours without understanding the possible consequences of these behaviours. For instance she is highly addicted to cigarettes and when she runs out she will approach strangers. She can become aggressive and hostile if refused. She has left offensive personal articles in public places, which leads to complaints about her behaviours from neighbours when she lives independently. She has demonstrated unusual behaviours such as loitering outside schools wanting to touch every child leaving the school (in a purely maternal sense, but one which might be very easily misinterpreted by a parent of these children) putting herself at great risk of assault or arrest.
At the same time, TI lives in XXXX which is a secure and controlled premises and is no longer ‘voluntary’ in that facility in the ordinary sense of the word given her persistent requests to leave. For further discussion on the role of a guardian in consenting to an adult living in an approved hospital under the Mental Health Act 1996, see EKR (Guardianship) [2009] TASGAB 2. TI’s advocate stated that she remains at XXXX because the Public Trustee pays her board at XXXX and she is unable to direct that funds be applied towards rental.
The Board explored whether an administration order alone could control issues of accommodation through the direction of board or rental payments. Witnesses agreed that this did not have the advantage of the appointment of a guardian, who might be able to assist in promoting TI’s discharge from XXXX to suitably supported accommodation. The applicant noted that there is a possibility of suitable supported facilities being developed with Federal Government funding in the near future. A guardian can ensure that a consistent approach to applying for and obtaining that alternative.
For a range of reasons, Mental Health Services had not pursued the option of issuing a Continuing Care Order to determine the question of TI’s accommodation. The Board cannot direct such a course and must determine the application as it is before it.
TI also wishes to move back to [her country of birth]. She has visited there with the support of the applicant, however her family there report that they are only able to cope with her for short periods of time and they would not be able to support her in the longer term. It is clear that above all, at the moment, TI wishes to leave XXXX and be independent with shopping, cooking and cleaning. However witnesses noted that at times she can be quite happy living at XXXX. When informed of the possibility of alternative supported accommodation, TI also seemed happy with that prospect.
The Board was satisfied that there is a need for a guardian to determine (i) the future of the application for public housing, (ii) TI’s wish to return to [her country of birth], (iii) to determine whether TI should remain at XXXX and (iv) the possibility of future housing in federally funded supported accommodation facilities. These decisions all fall within the category of decisions about where she shall live permanently or temporarily.
As the latter issue may take some significant time to resolve, and noting the chronic nature of TI’s disability, the Board considered that a three year term was appropriate.
Eligibility of proposed guardian:
The applicant nominated only the Public Guardian to be TI’s guardian. There was no other nomination. TI has family in Tasmania who are very careful about the level of contact they have with her to avoid the relationships deteriorating to abuse from her. None of these family members would be suitable as her guardian. The Deputy Public Guardian has been TI’s guardian previously and at times TI has been quite compatible with her and enjoyed her support. At times, she has been hostile to that appointment also. The Board was satisfied that the appointment of the Public Guardian is appropriate in this case.
Conclusion:
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 person and circumstances, and
•is in need of a limited guardian;
THE BOARD ORDERS
That the Public Guardian be appointed guardian of the represented person.
That the powers and duties of the guardian be limited to decisions concerning where the represented person is to live whether permanently or temporarily.
That the order remains in effect to 19 November 2015.
Anita Smith
PRESIDENT
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