TX (Emergency Guardian)

[2010] TASGAB 16

GUARDIANSHIP AND ADMINISTRATION BOARD

TX – an application for the appointment of an emergency guardian for TX by the Department of Health and Human Services

Neutral citation: TX (Emergency Guardian) [2010] TASGAB 16

REASONS FOR DECISION

Anita Smith (President)

22 September 2010

Guardianship – Application for emergency order – evidence of capacity – opportunity to hear and challenge the evidence at a hearing
Guardianship and Administration Act 1995 section 65

The applications:

1. On 13 September 2010 the Board received an application from Health West RPHS (a Division of the Department of Health and Human Services (“the Department”)) for the appointment of a guardian and an administrator for TX, together with the requisite Health Care Professional Report by Dr Takavada Mapfumo, pursuant to sections 20 and 51 of the Guardianship and Administration Act 1995. Two days later the Board also received an application for the appointment of a guardian pursuant to the emergency provisions in section 65 of the Act.

2. Because it was seeking further information about the application, the Board had not made a decision on the emergency application when a further request for an emergency order was received on 22 September 2010.  The main concern of the applicants for emergency orders (both of whom are representatives of the Department) was that TX was in hospital and may seek to discharge himself contrary to the advice of his treating team.

Evidence of a disability and capacity to make relevant decisions:

1. TX is a 66 year old man who, according to the report provided by Dr Jane Tolman dated 15 November 2009, has a range of disabilities, but had the ability to make decisions about his person and circumstances although his ability may be impaired from time to time.  Dr Tolman reported a functioning system of care for TX.  On 22 September 2010 the Board received a later medical report by Dr Jane Tolman dated 30 July 2010 when she reported a deterioration in TX’s care arrangements and cognitive functioning.  However the report also noted the TX disagreed with most of those assertions and had an alternative version of the events so reported. 

2. A report by Dr Takavada Mapfumo dated 2 September 2010 reported that TX’s condition had deteriorated. Dr Mapfumo reported that TX’s condition is episodic. He also stated that “he seems capable” of making decisions about where he should live temporarily or permanently. 

3. The most recent evidence presented to the Board did not support the contention that TX was incapable of making reasonable decisions about where he should live temporarily or permanently.  Therefore the evidence available to the Board suggested that he may be capable of making a reasonable decision about discharge from hospital.

Evidence of urgency and a need for a guardian:

1. Enquiries by the Board’s Investigator on 15 September 2010 with regards to the first emergency application noted that TX had not been discharged and was not refusing treatment. 

2. On 21 September 2010 Mr SS contacted the Board indicating that he acted for TX who wished to participate in any decision making processes regarding the appointment of a guardian or an administrator and was well enough to understand the nature and effect of such proceedings.  

1. The main decision, being whether or not he ought to be discharged from hospital appeared from the available evidence to be a decision of which he was capable.  All other matters do not appear to be urgent.

2. There is also a possibility that TX may have capacity to appoint an enduring guardian and an enduring power of attorney, so that may present as a less restrictive alternative to the appointment of a guardian and administrator by the Board.

3. This is a matter that should proceed to a hearing so that TX has an opportunity to hear and test the evidence put forward in the application and put his own evidence if he should wish.

Conclusion:

1. The application fails because the allegedly urgent issue is one that it appears TX has capacity to decide.  There is also a possibility that there may be less restrictive alternatives to the appointment of a guardian and an administrator.  Additionally, TX’s wishes have been clearly explained by his legal representative and it is appropriate that he be given an opportunity to contest these applications in a hearing. 

2. The emergency applications dated 15 and 22 September 2010 are dismissed.

   Anita Smith

   PRESIDENT