UXW (Renewal of Emergency Guardianship Order)

[2019] TASGAB 28

CITATION:	UXW (Renewal of Emergency Guardianship Order) [2019] TASGAB 28
HEARING DATE(S):	2 October 2019
DATE OF ORDERS:	2 October 2019
DATE OF STATEMENT OF REASONS:	22 October 2019
BOARD:	Ms R. Holder, President
APPLICATION:	Guardianship – Renewal of Emergency Order
CATCHWORDS:	Emergency Guardianship – renewal of Emergency Order – power to vary – additional powers - urgent circumstances
LEGISLATION CITED:	Guardianship and Administration Act 1995, ss 6, 20, 65
CASES CITED:	FLI (Extended Emergency Guardianship) [2018] TASGAB 29, SGX (Emergency Guardianship) [2018] TASGAB 32, NPC (Extended Emergency Guardianship) [2019] TASGAB 21

Statement of Reasons

Background

1. On 4 September 2019, the Guardianship and Administration Board (‘the Board’) made an Emergency Guardianship Order for UXW, the Represented Person, which remained in effect until 2 October 2019. The Board appointed the Public Guardian with powers and duties limited to decisions concerning where UXW was to live, permanently or temporarily.

2. Following receipt of a written request by the Guardian Ms Valerie Hannon, the Board determined to renew the Emergency Guardianship Order for a further 28 days. The new Order remains in effect until 30 October 2019.

3. A request for a Statement of Reasons has been made by Ms Hannon in relation to the extension of the Emergency Guardianship Order.

Legislation

1. Part 8, section 65 of the Guardianship and Administration Act 1995 (‘the Act’) gives the Board the power to make orders if urgent circumstances exist, providing the Board is satisfied there may be grounds for making an order.

   Section 65 provides:

   (1)Where the Board considers it proper to do so by reason of urgency, the Board may in respect of a represented person make any order or give any direction considered appropriate in the circumstances.

   (2)Where the Board considers it proper to do so, by reason of urgency, the Board may, in respect of a person who is not a represented person but in respect of whom the Board considers that there may be grounds for making a guardianship order or an administration order make an order appointing –

   (a)the Public Guardian as his or her guardian; or

   (b)the Public Trustee as administrator of his or her estate –

   and in either case the Board may make any order or give any direction considered appropriate in the circumstances.

   (3)The Board may make an order under this section of its own motion or on request by any person whom the Board considers to have a proper interest in the matter.

   (4) In the exercise of its powers under this section –

   (a)the Board is not required to give notice to any person or to hold a hearing before making an order but the Board must make such inquiries or investigations as the Board may think appropriate; and

   (b)the Board may act on a request made, or information received, by telephone or any other means that the Board considers appropriate in the circumstances; and

   (c)…

   (4A) The powers and functions of the Board under this section may be exercised and performed by one or 3 members of the Board as may be determined in each case by the President.

2. The Board can renew an emergency order once, pursuant to section 65(5):

   (5) An order under this section –

   (a)remains in effect for such period as the Board determines but not exceeding 28 days; and

   (b)may be renewed but only once for a further period not exceeding 28 days.

3. Further, section 6 of the Act sets out the underlying principles of the Act:

   A function or power conferred, or duty imposed, by this Act is to be performed so that –

   (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.

Grounds for a Guardianship Order

1. Section 20 of the Act provides:

   (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. The Application for an Emergency Guardianship Order dated 4 September 2019 filed by a social worker at the Royal Hobart Hospital (‘RHH’) was accompanied by a Report from Ms Katherine Parsissons, Clinical Nurse Consultant with Older Persons Mental Health Services. Ms Parsissons referred to an assessment in June 2016 conducted by Dr Matthew Fasnacht, Old Age Psychiatrist who diagnosed UXW with dementia. The Report states that, ‘He scored 11/30 on a Montreal Cognitive Assessment, a normal score is > than 26/30.” Further, it states:

   He was re-referred and assessed on the 23/08/2019. At that time it was clear that [he] had declined significantly since his last assessment. This time his MoCA was 6/30 with deficits across all domains. As well as poor results in cognitive testing the collaborative history we obtained showed issues in functioning.

3. The Guardian’s report dated 1 October 2019 stated that consent had been provided by the Guardian to transfer UXW from the RHH to the Roy Fagan Centre (‘RFC’) for ongoing assessment and treatment. Consent was also provided for medication, essentially chemical restraint, due to escalated behaviours and the risk of harm to himself and others. The Guardian reported UXW could not see any reason why he was admitted at the Roy Fagan Centre and wanted to leave to resume travelling in his campervan. The Guardian reported that UXW required ongoing assessment and treatment before a discharge destination could be ascertained and sought the order be renewed.

4. The Board is satisfied that there are grounds to renew the Emergency Guardianship Order, as it has evidence of Dr Fasnacht diagnosing UXW with dementia in June 2016 and the subsequent decline in cognitive ability as evidenced by recent cognitive testing. Without the benefit of a hearing, the Board accepts this information on a prima facie basis. The Board also has the Guardian’s report which identifies a probable need for a Guardianship Order, which the Board accepts on a prima facie basis. 

Urgency

1. Further the Board is satisfied it is proper to renew the Emergency Guardianship Order, by reason of urgency. The urgency is the need for ongoing detainment of UXW at the RFC, given he sees no reason to be there and has had escalated behaviors which have resulted in the Guardian consenting to chemical restraint. UXW is a person incapable of giving informed consent to his admission. 

Decision

1. Accordingly, before the original Emergency Guardianship Order expired, the Board renewed the Emergency Guardianship Order for a further 28 days with the same limited power.

2. While the Board is not bound by its previous decisions, those decisions ought to be followed as a matter of consistency and comity, unless a substantial error in reasoning can be identified in forming a different view, or if particular circumstances require it to be distinguished. The Board adopts the interpretation of ‘renew’ preferred by the Board in SGX (Extended Emergency Guardianship) [2018] TASGAB 29 and repeated in FLI (Emergency Guardianship) [2018] TASGAB 32 and NPC (Extended Emergency Guardianship) [2019] TASGAB 21, and in particular at paragraphs 12-14:

   Section 65(5) states an order can be renewed for a single further period of 28 days. It does not provide the power to vary the order by adding additional powers.

   The word renew is not defined in the Act. The Board considered the plain English meaning. The Macquarie Dictionary (2016) defines renew as:

   to begin or take up again, as acquaintance, conversation, etc.

   to make effective for an additional period: to renew a lease.

   to restore or replenish: to renew a stock of goods.

   to make, say, or do again.

   to revive; re-establish.

   to recover (youth, strength, etc.).

   to make new, or as if new, again; restore to a former state.

   –verb (i)

   to begin again; recommence.

   to renew a lease, note, etc.

   Therefore applying the ordinary meaning of the word renew and adopting the wording of the Macquarie Dictionary, the legislation enables the Board to, ‘make effective for an additional period’ the emergency guardianship order, that is for a further 28 days.

   There is nothing in section 65 that expressly enables the Board to vary or amend the original emergency order and section 65(5)(b) does not contemplate more than a limited renewal power. It would be inconsistent with ordinary principles of statutory interpretation to attempt to read into this section a power to vary the original orders.

3. In the event that the circumstances of a represented person (subject to an Emergency Order) changed sufficiently as to warrant removal or additional powers being granted to a guardian, that could in principle be done under section 65(1), provided that the Board was satisfied ‘to do so by reason of urgency.’

4. The Guardian’s Report submits there is urgency to warrant varying the Order to include an additional power. That is, to access information about UXW’s NDIS plan, as to what services are directly funded and to make subsequent decisions about NDIS funded service provision. The Guardian reports she does not have authority to obtain this information from NDIS which impacts on accommodation decisions she may make. The Board has no evidence as to UXW’s wishes or his understanding of such matters. The Board is not satisfied urgent circumstances exist to require a variation of the Order. UXW is safe and being cared for at the Roy Fagan Centre and according to the evidence of the Guardian is still receiving ongoing assessment and management and therefore is not ready for discharge. There is no evidence he is at risk of harm or neglect. These circumstances are not uncommon and occur quite frequently in the guardianship jurisdiction here and in other states and territories of Australia, whereby a guardian may recognise they need further powers once they have been appointed. This can often occur when people are discharging from hospital and require decisions to be made as to discharge accommodation. Emergency Orders or urgent requests for additional powers should not be used as an avenue to prevent bed blockage or as a means to get someone discharged quickly, rather than going through the usual process of applying for guardianship orders and ensuring procedural fairness is afforded to the represented person and interested parties. While it is not optimal for anyone to be detained longer than necessary in hospital it is sometimes necessary to ensure the represented person has the right to attend and participate in a hearing. It also allows the statutory timeframes of the Act to be adhered to. Procedural fairness affords UXW, the parties and other persons with a proper interest in the matter the ability to receive notice of the hearing and to present relevant material to the Board in person or through written evidence. It also provides opportunity for UXW to consider whether or not legal representation or advocacy is required and to obtain representation if he so wishes. Pursuant to section 6 of the Act, it also allows the Board to hear evidence from UXW as to his wishes if he chooses to participate in the hearing. It is also least restrictive of UXW’s freedom of decision and action as is possible in these circumstances.

5. An Application for Guardianship pursuant to section 20 of the Act can be made, and indeed has been made in respect of UXW. The Guardian can seek specific powers at hearing, as she has identified in her report. This is the appropriate process where there is no urgency for the immediate safety and care of the represented person.

6. The Board is satisfied there are grounds to renew the Emergency Guardianship Order.

Order

1. The Board Orders, with respect to UXW as the Represented Person:

   1.That the Public Guardian (Tas) continue as Guardian of the Represented Person.

   2.That the powers and duties of the Guardian are limited to decisions concerning where the Represented Person is to live whether permanently or temporarily.

   3.Pursuant to section 28 of the Guardianship and Administration Act 1995, any police officer; the Public Guardian; and any employee or agent of the Royal Hobart Hospital or Roy Fagan Centre where the Represented Person is staying as determined by the Guardian, are empowered to take the measures or actions specified below to ensure that the Represented Person complies with any decision of the Guardian made under this Order.

   Specified measures or actions:

   The use of such reasonable force or physical restraint as is necessary to facilitate transport of the Represented Person to the Roy Fagan Centre and to keep the Represented Person there or return him there should he leave, contrary to the Guardian’s decision.

   4.That this Order remains in effect until the 30^th day of October 2019.