ACT CIVIL & ADMINISTRATIVE TRIBUNAL

IN THE MATTER OF AB (Guardianship) [2017] ACAT 67

GT 2/2017

Catchwords: GUARDIANSHIP – review of appointment of Public Trustee and Guardian as guardian and manager for a person being treated for mental illness under psychiatric treatment order – statutory criteria for appointment – scope of “otherwise suitable” for appointment – factors to be taken into account – difficult relationship between protected person’s family and the person’s treating team – circumstances in which Public Trustee and Guardian should be appointed rather than an available family member who meets most statutory conditions for appointment – human rights considerations – principles to be followed by decision-maker.

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 39Guardianship and Management of Property Act 1991 ss 4, 5A, 7, 8, 9, 10, 11Human Rights Act 2004 ss 5, 6, 11, 12, 30Mental Health Act 2015 ss 56, 57, 58, 60, 62, 64, 65, 194

Cases cited: Public Trustee of the ACT v Lee [2014] ACAT 69

Tribunal: President G Neate AMMember J Greagg

Date of Orders: 6 September 2017Date of Reasons for Decision: 6 September 2017

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) GT 2/2017

IN THE MATTER OF AB

TRIBUNAL: President G Neate AMMember J Greagg

DATE: 6 September 2017

ORDER

The Tribunal orders that:

1. The order made by the Tribunal on 18 April 2017 in GT 2 of 2017 appointing

the Public Trustee and Guardian as guardian and manager for the protected

person is confirmed.

2. The appeal against the order made by the Tribunal on 18 April 2017 (AA 14 of

2017) is dismissed.

………………………………..President G Neate AM

Delivered for and on behalf of the Tribunal

REASONS FOR DECISION

Introduction

1. The ACT Civil and Administrative Tribunal (the Tribunal) has decided to review

a decision made on 18 April 2017 by a Tribunal constituted by three members

(the original Tribunal) to appoint the Public Trustee and Guardian (PTG) to

be the guardian and financial manager for AB.1 The review is conducted on the

Tribunal’s own initiative but at the prompting of AC, the father of AB.

2. The Tribunal as currently constituted (the review Tribunal) has to decide

whether to continue, vary or revoke the order made on 18 April 2017 (the

current order). AC has asked the review Tribunal to appoint him as the sole

guardian and financial manager in place of the PTG.

Background to the guardianship and management order dated 18 April 2017

3. The current order was made in unusual circumstances.

4. AB was born in 1984. At the time of the review hearing he was 32 years old.

Since May 2016, he has been receiving treatment at the Adult Mental Health

Unit (AMHU) at the Canberra Hospital. In November 2016, the Tribunal made

a Psychiatric Treatment Order (PTO) in relation to him for a period of six

months.

5. On 4 January 2017, AC lodged with the Tribunal Registry an application for an

order under the Guardianship and Management of Property Act 1991 (GMP

Act) appointing him as the plenary guardian for AB. He subsequently advised

the Tribunal Registry that he was withdrawing that application.

6. On 16 March 2017, AC lodged a new application seeking to be appointed as

guardian and manager. Included in that application (and the previous

application) was the following statement:

1 Because this decision refers to mental health proceedings, the names of the protected person, members of his family, treating doctors and others involved in these proceedings have not been used in these reasons for decision. See ACT Civil and Administrative Tribunal Act 2008 section 39, Mental Health Act 2015 section 194

2

Because [AB] does not have a guardianship,(sic) our involvement in [AB’s] treatment is seen by some treating psychiatrists as illegal, unwelcome and a breach of privacy.On many occasions, the treating doctors urge us to apply for a guardianship so that they can welcome us as a legal partners in pursuing of helping [AB] finding a lasting cure for his illness. (Errors in original)

7. On 24 March 2017, a social worker at the AMHU lodged an application for

appointment of the PTG as guardian and manager for AB. That application

included the following statements:

[AB] has a diagnosis of chronic schizophrenia and was assessed and found having impaired decision-making ability in respect of health, welfare and financial matters. He was supported by parents until now in these areas.

...

[AB] has been in AMHU since May 2016, receiving treatment for his diagnosed mental condition. Treating team have organised an expert opinion on his case and would like to plan for discharge. [AB] doesn’t have capacity to make decision on matters related discharge destination, NDIS support, community supports, financial and welfare matters. Treating would like a guardian and financial manager appointed for [AB] to make decisions on these matters, to facilitate discharge planning and subsequently transition him back to community. (Errors in original)

8. On 12 April 2017, one doctor signed a review report prepared by another treating

doctor recommending to the Tribunal that an additional PTO be made.

9. At the hearing on 18 April 2017, the original Tribunal had before it the

recommendation for an additional PTO and the two applications for the

appointment of a guardian and manager in relation to AB: one by AC, and the

other by the social worker. AC provided the original Tribunal with a detailed

written statement in relation to why (in his submission) AB needs a guardian

and manager, and why AC is the most suitable person to be appointed as the

guardian and manager. The original Tribunal heard from AC and AB’s mother,

AB’s brother, two treating psychiatrists, the social worker, and the Public

Advocate. The PTG was not represented at that hearing, which went for more

than two hours.

10. On that day, the original Tribunal made two types of orders in relation to AB:

(a) a PTO for six months from that date; and

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(b) an order appointing the PTG as guardian and manager for AB to be

reviewed not later than 18 April 2020.

Background to the application for review of the orders dated 18 April 2017

11. On 11 May 2017, AC lodged an application for appeal against the guardianship

and management order. He asked that the order appointing the PTG be set aside

and that either AC or his wife be appointed as guardian and manager, or that

they be appointed jointly as guardian and manager. He attached detailed typed

documents in support of the application.

12. Following the making of procedural orders on 31 May 2017, a differently

constituted Tribunal (the appeal Tribunal) presided at a hearing on 17 July

2017. AC and his wife were present. Their other son participated by telephone.

The PTG was represented. The social worker who applied for the appointment

of the PTG as guardian and manager was not present. The appeal Tribunal did

not proceed because of evidentiary issues and because the original applicant had

not been advised of the hearing.

13. After some discussion with the parties, the appeal Tribunal directed that:

(a) the hearing of the appeal be adjourned to a date to be fixed and be subject

to any further order of the Tribunal; and

(b) there be a hearing in relation to whether the order appointing the PTG as

the guardian and manager should be varied or should be revoked (the

review hearing).2

As a consequence of this approach, other issues that would otherwise have been

dealt with on appeal (e.g. in relation to the original Tribunal’s conduct of the

hearing) no longer arise.

14. Having decided that the matters in issue be dealt with by the review process rather

than the appeal process, the appeal Tribunal made procedural directions for the

review hearing to occur on 7 August 2017.

2 See Guardianship and Management of Property Act 1991 section 19

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Issues

15. The issues before the review Tribunal are:

(a) Should the order dated 18 April 2017 appointing the PTG as guardian and

manager be revoked on the ground that the need for guardianship or

management no longer exists?

(b) If an order appointing a guardian and/or a manager is appropriate, what

powers should it confer on the guardian and/or manager?

(c) If an order appointing a guardian and/or a manager is appropriate, who

should be the guardian and/or manager?

Should the order dated 18 April 2017 be revoked?

16. The first issue raises a number of subsidiary issues:

(a) Is AB someone who satisfies the criteria for the appointment of a guardian

(section 7(1)(a))?

(b) Is there a need for a guardianship order (section 7(1))?

(c) Is AB someone who satisfies the criteria for the appointment of a manager

(section 8(1)(a))?

(d) Is there a need for a management order (section 8(1))?

Statutory requirements

17. The provisions that govern the answers to those questions are sections 7(1) and

8(1) of the GMP Act.

7 Appointment and powers of guardians(1) This section applies if the ACAT is satisfied that—

(a) someone has impaired decision-making ability in relation to a matter relating to the person’s health or welfare; and

(b) while the person has the impaired decision-making ability—(i) there is, or is likely to be, a need for a decision in relation to the

matter; or(ii) the person is likely to do something in relation to the matter

that involves, or is likely to involve, unreasonable risk to the person’s health, welfare or property; and

(c) if a guardian is not appointed—(i) the person’s needs will not be met; or

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(ii) the person’s interests will be significantly adversely affected.Note 1 See s 8C in relation to appointment of a guardian for a child.

Note 2 A person’s needs may be met, or the person’s interests protected, under an enduring power of attorney (see Powers of Attorney Act 2006).

8 Appointment and powers of managers(1) This section applies if the ACAT is satisfied that—

(a) someone has impaired decision-making ability in relation to the person’s financial matters or a matter affecting the person’s property; and

(b) while the person has the impaired decision-making ability—(i) there is, or is likely to be, a need for a decision in relation to the

matter; or(ii) the person is likely to do something in relation to the matter

that involves, or is likely to involve, unreasonable risk to the person’s health, welfare or property; and

(c) if a manager is not appointed—(i) the person’s needs will not be met; or

(ii) the person’s interests will be significantly adversely affected.

The parties’ submissions

18. At the review hearing, a current treating doctor, AC and the PTG’s representative

(the PTG’s officer) agreed that AB satisfied the statutory criteria as someone

for whom a guardian and manager could and should be appointed.

Consideration and conclusion

19. Although the parties agree on that matter, it is the review Tribunal that must be

satisfied that the criteria in sections 7(1) and 8(1) of the GMP Act have been

met. We have considered:

(a) the Tribunal Review Report of two treating doctors dated 12 April 2017,

in relation to the PTO, described AB as a person with a “severe chronic

schizophrenia, virtually all aspects” of whose functioning have been

affected. As a person with “long-standing treatment-resistant

schizophrenia,” he lacked decision-making capacity in relation to

decisions about his treatment, care or support;

(b) the written statement dated 22 June 2017 in which two treating doctors

wrote that during AB’s current admission to the AMHU he had

demonstrated negligible capacity to make decisions on matters related to

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discharge, destination, National Disability Insurance Scheme (NDIS)

support, community supports, financial and welfare matters;

(c) statements by a current treating doctor at the review hearing on 7 August

2017 that AB still meets the relevant criteria, and the treating team has not

been able to get any communication with him about financial matters,

applying for NDIS support, or his accommodation.3 AB has a relapsing

and remitting illness that seems to be following a chronic course, and it is

likely that he will have some impairment for the rest of his life;4

(d) the written submissions of the PTG that when AB is ready for discharge

there are likely to be decisions about such matters as NDIS, his

accommodation, and ongoing care and support.

20. On the basis of that and other material, the review Tribunal, is satisfied that:

(a) AB has impaired decision-making ability in relation to matters relating to

his health or welfare, and in relation to his financial matters and matters

affecting his property;

(b) while he has the impaired decision-making ability, there is likely to be a

need for a decision or decisions in relation to those matters; and

(c) if a guardian and manager are not appointed, his needs will not be met and

his interests5 will be significantly adversely affected.

21. Consequently, AB is a person for whom a guardian and manager should be

appointed.

3 Transcript of proceedings page 64 Transcript of proceedings page 545 For the definition of a person’s ‘interests’ see Guardianship and

Management of Property Act 1991 section 5A

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What powers should be conferred on the guardian and/or manager?

Statutory provisions

22. Section 7 of the GMP Act also provides:

(2) The ACAT may, by order, appoint a guardian for the person, with the powers that the ACAT is satisfied are necessary or desirable to make decisions for the person in accordance with the decision-making principles.Note The powers that may be given to a guardian are restricted under s 7B.

(3) The powers that may be given to a person’s guardian include the following powers:(a) to decide where, and with whom, the person is to live;(b) to decide what education or training the person is to receive;(c) to decide whether the person is to be allowed to work;(d) if the person is to be allowed to work—to decide the nature of the

work, the place of employment and the employer;(e) to give, for the person, a consent required for a medical procedure

or other treatment (including medical research or low-risk research but not including a prescribed medical procedure or medical treatment mentioned in paragraph (f));Note For when a guardian may consent to a person participating in medical

research or low-risk research, see pt 2B (Medical research and low-risk research).

(f) to give, for the person, a consent required for medical treatment involving treatment, care or support under the Mental Health Act 2015 (other than a prescribed medical procedure);Note For provisions relevant to a guardian with power under this paragraph,

see s 70A (Restrictions on consent by guardian to mental health treatment, care or support).

(g) to bring or continue legal proceedings for or in the name of the person.

23. Section 8 of the GMP Act also provides:

(2) The ACAT may, by order, appoint a manager to manage all, or a stated part of, the person’s property, with the powers that the ACAT is satisfied are necessary or desirable to allow the manager to make decisions in relation to the property, in accordance with the decision-making principles.Note The ACAT’s power to appoint a manager is restricted under s 8A.

(3) The powers that may be given to a person’s manager are the powers that the person would have if the person were legally competent to exercise powers in relation to the person’s property.

24. Section 11 is also relevant.

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11 Powers to be least restrictiveThe powers given to a person’s guardian or on a manager of a person’s property are to be no more restrictive of the person’s freedom of decision and action than is necessary to achieve the purpose of the order.Note Also, the guardian or manager should exercise the powers in accordance with

the decision-making principles (see s 4).

The current order

25. The current order provides that the PTG has the following powers as guardian for

AB (the protected person):

(a) to decide where, and with whom the protected person is to live;

(b) to apply for and implement an application for support under the National Disability Insurance Scheme.

(c) to give any consent required for a medical procedure or other treatment (other than a prescribed medical procedure) that cannot be provided under a psychiatric treatment order made under the Mental Health Act 2015.

(d) to make other personal decisions needed to ensure the protected person’s health and welfare needs are met and to protect him from unreasonable risks to his health and welfare;

(e) to liaise with the protected person’s family regarding the protected person’s treatment, care and support.

26. The current order also provides that the PTG, as manager of all of the property of

AB, has all the powers the protected person would have been entitled to

exercise if he were legally competent to exercise powers in relation to his

property himself, having regard to the views of his family.

The parties’ submissions

27. In its written submission dated 30 June 20176, the PTG stated that when AB is

ready for discharge there are likely to be decisions about such matters as NDIS

support, his accommodation, and ongoing care and support. At the time of that

submission:

(a) consent for AB’s treatment was provided under the PTO and there had

been no decisions or consents required from the PTG;

6 The statement was prepared for the hearing of the appeal against the original decision

9

(b) the PTG had visited AB and liaised with the AMHU treating team about

his treatment and care needs and about completing an NDIS application;

(c) the PTG had liaised with AC who initially included the PTG in his daily

“observations” emails to the treating team (a practice which then ceased);

(d) the PTG had met with the treating team and AB’s parents, and AC raised

concerns about AB being discharged from the hospital and being placed in

a Step Up Step Down facility;

(e) AB was not ready for discharge;

(f) it was unclear when he would be ready for discharge; and

(g) the treating team had not discussed discharge planning with the PTG.

28. At the review hearing, the PTG’s officer advised the review Tribunal that the PTG

had not made any decisions but, based on the recommendations of the treating

team, the need for decisions was “upcoming” and an order was required.

29. In their written statement dated 22 June 2017, two treating doctors wrote that

during AB’s current admission to the AMHU:

(a) AB had demonstrated negligible capacity to make decisions on matters

related to discharge, destination, NDIS support, community supports,

financial and welfare matters;

(b) on the very few occasions AB had expressed any view, he had deferred to

his father; and

(c) because the family have refused to participate in the process and work

with the team, the treating team had no choice but to apply for the

appointment of the PTG as guardian and financial manager to make

decisions on these matters and to facilitate discharge planning to enable

AB to transition back to the community.

30. Subject to one qualification, AC, the PTG and the treating team agreed at the

review hearing that:

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(a) the powers conferred on the guardian and manager by the current order

should be continued; and

(b) no other powers (including any of the additional types listed in section

7(3) of the GMP Act) should be added in any new or varied order.

31. The only qualification is a logical one. If AC were to be appointed as the guardian

and manager, the current order would be varied so that:

(a) the guardian would not be required “to liaise with the protected person’s

family regarding the protected person’s treatment, care and support”; and

(b) the manager would not be obliged to exercise his powers “having regard

to the views of the protected person’s family.”

Consideration and conclusion

32. Having regard to the evidence and submissions to the review Tribunal and the

operation of section 11 of the GMP Act, we are satisfied that an order should

confer on the guardian and manager the same powers as are contained in the

current order (subject to the continuation or deletion of the qualifications quoted

at [31]).

If an order is appropriate, who should be the guardian and/or financial manager for AB?

33. At the heart of the review is a dispute as to who is the most appropriate person to

be the guardian and manager of AB. To answer this question requires close

consideration of the statutory provisions governing who may be appointed (as

set out in sections 9 and 10 of the GMP Act), and the evidence before the

review Tribunal at the date of the review hearing. The GMP Act provides:

9 Who may be appointed

(1) The public trustee and guardian or an individual may be appointed as a guardian.

(2) The public trustee and guardian, a trustee company or an individual may be appointed as a manager.

(3) A person may be appointed both guardian and manager, and people may be appointed jointly as guardians or managers, or both.

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(4) The public trustee and guardian must not be appointed as a person’s guardian if an individual who is otherwise suitable has consented to be appointed.

(5) The public trustee and guardian or a trustee company must not be appointed as a manager of a person’s property if an individual who is otherwise suitable has consented to be appointed.

10 Considerations affecting appointment

(1) A person must not be appointed as a guardian or manager unless the person consents in writing to the appointment.

(2) A person (except the public trustee and guardian or a trustee company) must not be appointed as a guardian or manager unless the person is an adult and has informed the ACAT on oath whether the person—

(a) has been convicted or found guilty of an offence involving violence, fraud or dishonesty; or

(b) has been, either in the ACT or elsewhere, refused appointment as a guardian or manager, or removed from office as a guardian or manager; or

(c) is bankrupt or personally insolvent (and, if so, has given particulars to the ACAT).

Note Bankrupt or personally insolvent—see the Legislation Act, dictionary, pt 1.

(3) Someone (other than the public trustee and guardian) may be appointed as a guardian or manager only if the ACAT is satisfied that the person will follow the decision-making principles and is otherwise suitable for appointment.

(4) For subsection (3), the matters the ACAT must take into account include—

(a) the views and wishes of the person (the protected person) for whom a guardian or manager is to be appointed; and

(b) the desirability of preserving existing relationships with family and any other carers; and

(c) whether the proposed guardian or manager is compatible with the protected person; and

(d) whether the proposed guardian or manager lives in the ACT; and

(e) whether the proposed guardian or manager will be available and accessible to the protected person; and

(f) the nature of the functions to be exercised under the order and whether the proposed guardian or manager is competent to exercise them; and

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(g) whether the interests and duties of the proposed guardian or manager are likely to conflict with the protected person’s interests to the detriment of the protected person’s interests.

(5) The interests and duties of the domestic partner or a relative of a person must not be taken to be likely to conflict with the interests of the person only because of the fact of being the domestic partner or relative.

34. Section 10(3) states that someone other than the PTG may be appointed as

guardian or manager only if the Tribunal is satisfied that the person will follow

the “decision-making principles” and is otherwise suitable for appointment. The

decision-making principles are set out in detail in section 4 of the GMP Act.

That section is quoted later in these reasons for decision in the discussion about

whether AC is, as he stated, capable of following and adhering to the decision-

making principles (see [159] to [173]).

Evidence and submissions of treating team

35. As noted earlier, the treating team considered it had no choice but to apply for the

PTG to be appointed or guardian and manager. The treating team does not

support the appointment of AC.

36. The statement dated 22 June 2017 signed by two treating doctors described in

some detail the relationship between the treating team and AB’s family and the

implications of that relationship for his treatment.

37. Although, by the time of the review hearing, some of the circumstances had

changed (discussed below), it is appropriate to set out the concerns expressed in

the doctors’ statement and the reasons for those concerns.

(a) AB’s parents express a wish to be his primary carers and, although the

preference of the treating team was to work with them in a collaborative

way, his family “consistently responded adversely regarding any

suggestion or constructive changes to his medication and

psychosocial/behavioural program and have been obstructive to a large

extent to AB receiving appropriate evidence-based psychiatric care;”

(b) the family has been “fixated on medication, disregarding other

biopsychosocial aspects of care that could promote and hasten [AB’s]

recovery” (e.g. their refusal of the behavioural management approach plan

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which was set out by a psychologist to help AB be more proactive and

interactive with others);

(c) the family has declined the NDIS package application that the treating

team’s social worker attempted to submit which would “assist in

transitioning AB to community care, once his condition has stabilised;”

(d) it has been “very difficult” to ascertain or explore options for

rehabilitation for AB because of his parents’ “opposition to every

suggestion made by the team;”

(e) during periods when AB showed a reasonable level of improvement, his

parents declined requests for him to have overnight leave with them

(giving various reasons) and at no time had the family acknowledged the

necessity for AB to have leave from the ward overnight to foster his

confidence and independence and to reinforce gains in clinical state when

these have been apparent;

(f) AC has been “repeatedly emailing the treating team, attempting to impose

his own idiosyncratic opinions about AB’s medication onto the treating

team and has sought to intimidate clinical team members through making

false claims about their motives, suggesting they wish to punish the family

or make [AB] more disabled and to mistreat [AB];”

(g) AC has sent “many complaints and defamatory claims including to the

Director General of Health, expressing anger and threats to complain to

even higher authorities in order to influence or undermine the

management plan of the treating team;”

(h) all attempts to explain the management plan to the family “on multiple

occasions by different members of the clinical staff over many months

have been unsuccessful with no acknowledgement of the key elements of

the management plan by the family;” and

(i) the family’s focus “remains centred around” AC’s “idiosyncratic beliefs

about psychotropic medications.”

38. In light of those statements, the two treating doctors expressed their belief that the

members of AB’s family “unfortunately are not in a position to act in [AB’s]

best interests from the medical and social perspective due to their inflexibility,

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high expressed emotion, lack of trust and inability to understand the central

importance of a consistent and comprehensive psychosocial rehabilitation

management plan.”

Evidence and submissions of Public Trustee and Guardian

39. The written submissions of the PTG dated 30 June 2017 were in the context that

the applicant for the order made on 18 April 2017 appointing the PTG as

guardian and manager was not involved in the appeal proceedings for which

those submissions were prepared. The PTG outlined some concerns about its

dealings with AC and conveyed the views of the treating team.

40. The PTG’s officer explained that the PTG (not an individual employee) is

appointed as guardian for a protected person. Individuals within the

guardianship team (such as that officer) work on behalf of the PTG as

guardians. In that capacity, she had spoken to AC about a possible application

for NDIS support. 7

41. The PTG noted that:

(a) although AC initially included the PTG in his daily “observations” emails

to the treating team, he had ceased to do so (while continuing to send the

emails to the treating team);

(b) at a meeting with the treating team and the PTG’s representative soon

after the PTG was appointed, AC stated that the PTG had already made up

its mind to discharge AB and was colluding with the treating team;

(c) later, AC wrote to the PTG advising that he and his wife had been banned

from visiting their son and requested assistance from PTG to investigate –

but when the PTG advised which officer would follow-up the issue, AC

advised that he did not want her to follow-up and only wanted an officer

who he named to handle things regarding his son;

(d) AC advised that he was not comfortable writing to the guardian’s email

address but wanted a direct email address for his nominated officer.

42. The PTG expressed concern about, and did not support, AC being appointed

guardian due to the impact of his involvement on AB’s psychiatric treatment. 7 Transcript of proceedings page 50

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The PTG also conveyed the strong opposition of the treating team to the

appointment of AC as such an appointment would make treating AB

“unworkable.”

Evidence and submissions of AC

43. In summary, AC submissions emphasise that:

(a) he meets the statutory criteria for appointment as AB’s guardian and

manager; and

(b) the appointment of the PTG as guardian and manager is unnecessary.

In making those submissions, he also referred to matters such as human rights

considerations and the operation of the decision-making principles in section 4

of the GMP Act.

44. AC submitted that he is a suitable person who has consented to be appointed as a

guardian and manager for his son and therefore the original Tribunal should not

have appointed the PTG as guardian and manager.8 He submitted that he meets

all the considerations listed in section 10(4) of the GMP Act because:

(a) he is willing, able, suitable and has consented to be appointed as a

guardian and manager for his son AB;

(b) he has the support of his wife, his other son and his daughter to be

appointed as the guardian and manager (which support is evident by

signed letters provided to the Tribunal);

(c) he has informed the Tribunal on oath that:

(i) he has not been convicted or found guilty of an offence involving violence, fraud or dishonesty;

(ii) he has not been removed from office as a guardian manager;

(iii) he has not been declared bankrupt or personally insolvent;

(d) he is capable of following and adhering to the decision-making principles

set out in section 4 of the GMP Act and will ensure that he will always

8 See Document D1 pages 1-3

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take into account the views and wishes of AB as well as the desirability of

preserving existing relationships with AB’s family and any other carers;

(e) he is compatible with AB as he understands what his son has been going

through, and has always been there to support AB since he was diagnosed

with mental illness 17 years ago;

(f) he lives in Canberra and will be available and accessible to AB whenever

and wherever AB needs him;

(g) he is competent to exercise his duties as AB’s guardian and manager –

having an Honours degree and a Master of Business Administration, and

having worked as a public servant for 28 years (from 1985 until 2013)

reaching a director position with a Commonwealth Government

Department, and currently working for another Department as a

contractor;9

(h) he will make sure that in performing the duties of guardian and manager it

would not conflict or disadvantage his son’s interests;

(i) he “worked and will continue to work with past, current and future health

professionals in the best interest of [AB], and there will be no conflict of

interest as our collective interest is to see [AB] leads a better quality of

life.”

45. AC provided the review Tribunal with a detailed written statement setting out the

degree to which he, his wife and AB’s two siblings have provided “unwavering

daily support and care” for AB since he was diagnosed with a mental illness in

2000.10 For example, AC wrote:

From (20 May 16 – present), [AC] and his family never stopped visiting [AB] daily and working with the treating team to help [AB] recover. While [AB] experiencing immobility, mutism and physical weakness; [AB’s] family continues to provide him with food on a daily basis.11

9 The description of his current position is set out in some detail in the signature block on the many emails that were provided to the Tribunal in relation to these proceedings

10 See Document D1 pages 3-611 Document D1 page 5 paragraph (p)

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46. AC also set out detailed written responses to what he submitted were claims

presented to the original Tribunal by the treating team. He described those

claims as “simply unfounded and one sided allegations” which were “neither

true nor backed up by explicit evidence.” It is not necessary to set out in full the

text of his responses. What follows is a summary of the eight allegations and the

responses to them drawn from the various documents provided by AC to the

review Tribunal,12 supplemented as appropriate with statements made at the

review hearing.

47. First, AB’s family has become intrusive and obstructive towards AB’s medication

and care. According to AC, he and the family have been neither obstructive nor

intrusive to the care or medication prescribed for and administered to AB by the

treating team. The family’s involvement “has been and will continue to be

confined to:”

- Playing an effective role in observing [AB’s] reaction to new medication or changes to existing medication.

- Reporting our daily observations to the treating team, on [AB’s] reaction to new medication or changes to existing medication.

- Informing the treating team of the knowledge we have accumulated since [AB] became mentally ill in 2000 and on what medications worked for [AB] and what medications did not work. The intention behind this information is to act as a valuable input for the treating team to steer their treatment of [AB].

- Voicing our concern first to the treating team if medication ... is found to deteriorate [AB’s] mental and physical condition manifested in making him unable to control his agitation, anger, and frustration ...

- If our voiced concern kept to be discarded and ignored, and in the best interest of [AB] we have voiced our concern to higher health authority

- our involvement is simply providing input to the treatment team who makes decisions on medication, and reporting concerns if medication is not delivering the desired result and instead causing [AB] unnecessary pain and suffering. Such involvement is neither intrusive nor obstructive.

48. The submission asks how the family can be “intrusive and obstructive” if they do

not have the legal authority to obstruct decisions made by the treating team. It 12 See Document D1 pages 8-9, 13-15, 22-31 and the documents

referred to and provided in Document D2

18

also asks why the current treating team considers their involvement is intrusive

or obstructive when the initial members of the treating team found their

engagement to be “constructive and helpful.” It also asked why, if the family are

obstructive, the treating team sought their input on how best to administer the

dosage of AB’s current medication (see email from AC dated 25 May 2017).

49. Second, AB’s family have become resistant and obstructive to any constructive

changes to AB’s medical treatment and psychosocial/behavioural program.

According to AC, the family never became resistant and obstructive to any

constructive changes to AB’s medical treatment and psychosocial/behavioural

program. He asserts that the reason behind this accusation is the treating team’s

belief that the family discourages AB from attending such a program, when the

real reason is AB’s reluctance to participate in such programs “despite our

continued encouragement for [AB] to do so.” Further, he asserts, a current

treating doctor had talked on separate occasions about providing a psychologist

and an occupational therapist to work with AB. Although the family “welcomed

that idea,” they heard nothing and did not see any engagement between AB and

such people until some time after each option was raised with them.

50. Third, AB’s family is unwilling to take advice on the need for a combination of

medication and psychosocial and behavioural management in the least

restrictive environment - including their opposition for AB to join the Step Up

Step Down program. According to AC, in January 2017 AB indicated clearly

and loudly in the presence of a nurse that he did not wish to be pushed into the

Step Up Step Down program. AB also said on several occasions that when he

was ready to be discharged he would like to be discharged to his own

accommodation under the care of his family (see AC’s email dated 5 January

2017).

51. Fourth, AB’s family is unwilling to apply for NDIS. AC asserted that the family

has never refused to apply for support under the NDIS, but they emphasised

treatment through medication as the first line of preparing AB for discharge. AC

asserted in writing and at the review hearing that there is a requirement that, in

order to apply for NDIS support, there be a medical assessment that AB is

permanently impaired. To date, no such assessment has been made. In contrast,

19

the medical recommendations were geared towards treatment and not towards

applying for NDIS for the purpose of discharging AB to a rehabilitation

institution. However, “[AB’s] family will more than happy to apply for the

NDIS once appointed guardian and manager over AB.”

52. At the review hearing, AC said that he is 100 per cent for NDIS support, and as

guardian he would want power to apply for it.

53. Fifth, AB’s family opposed the transfer of AB to the Neuropsychiatry Institute

(NPI) of the Prince of Wales Hospital in Sydney. AC acknowledged that his

family requested an expert second opinion because the doctors in the treatment

team “were determined to discard our input and our concern regarding the

deteriorated mental and physical condition” of AB. The family raised concern

over the interstate transfer for that purpose because they thought that an expert

second opinion could be provided in Canberra and did not require a Tribunal

order authorising the transfer. They were also concerned about the short notice

of the proposed transfer.

54. AC stated that, rather than oppose the transfer, he and his wife attended a hearing

at the Tribunal on 13 February 2017 to discuss the transfer of AB to the NPI.

Having raised specific concerns (regarding what tests the NPI would conduct,

and whether it was appropriate for AB to be transferred while he was taking

“unworkable medication”) and despite being “not clear about the real intention

behind the transfer,” they did not object to the transfer because “we did not want

to be an obstacle in [AB’s] recovery.”

55. AC detailed concerns about aspects of AB’s treatment at the NPI (some of which

he described as “brutal and barbaric”), the assessment and recommendations in

relation to AB prepared by the specialists in Sydney, and AB’s transport back to

Canberra (during which he was allegedly “treated like a criminal and like a wild

animal”). We note, however, that a report dated 19 May 2017 (prepared in

response to correspondence from AC about the treatment of AB at the NPI and

his transport to Canberra) did not support, and indeed refuted, some of the

assertions made by AC. Despite that report being provided to the Tribunal by

AC, he repeated his allegations in submissions to the review Tribunal.

20

56. Sixth, AB’s family have declined requests for AB to have overnight leave.

According to AC:

(a) AB’s family “never declined requests for [AB] to have overnight leave;”

(b) when the treating team asked them to take him on overnight leave, AB’s

behaviour was “unstable, unpredictable, used to be in heightened anger

and agitation and he used to shout at his sister, brother and his parents;”

(c) the family informed the treating team that, because his overnight leave

could present safety risks for his family members and to himself, they

were not in a position (out of fear) to prevent that if it occurred;

(d) during the weekly meeting with the treating team on 31 March 2017, it

was agreed that AB’s family would be the judge of whether or not it was

safe to take him for overnight leave (as recorded in an email from AC on

3 April 2017).

57. At the review hearing, a current treating doctor advised the review Tribunal that

more recently, AB has been able to have some protracted periods at home with

his family. The doctor was pleased for AB and thought that was good for AB’s

morale. He hoped that AB would come out of the ward “quite soon ... sooner

rather than later,” and assumed (in the absence of communication from AB) that

AB might like to live at home with his parents or possibly in his flat nearby.13

58. That development is illustrated by an email dated 24 July 2017, in which AC

stated that they took AB for weekend leave and cared for him from Friday

21 July 2017 until lunchtime on Monday 24 July 2017. He noted that AB had

limited mobility and that AB’s interaction with the family was mainly about

distant past events. He described AB as being “very compliant in taking his

medication on time” and stated that AB “does not present a safety risk for

himself and for his family.”

59. At the review hearing, AC reiterated his written statements summarised above,

and AB’s brother stated that the family does not have any control or influence

over AB in terms of when he decides to come home with the family.14 13 Transcript of proceedings page 614 Transcript of proceedings page 44

21

60. Seventh, AB’s family will not support AB to take his medication when he is

discharged to the community. According to AC:

(a) AB’s family have always been caring and supporting of him, and they

“have never discouraged [AB] from taking his medication,” and “they will

never reject any medication prescribed” for him, whether he lives with his

parents or on his own;

(b) AB’s family “will always support [AB] to take his medication when he is

discharged to the community.”

61. Eighth, AB’s family, in particular AC, taught a named doctor15 what medication

to give AB. In response, AC asserts that AB’s family never claimed to teach that

doctor what medication to give AB or that the doctor was learning from them.

Rather, he stated that, on one occasion when the doctor informed them about his

proposal to give AB a particular medication, they informed him of adverse side-

effects and the doctor decided not to try that medication on AB. AC continued:

The treating team have given [AB] medication known to be unsuitable to [AB] and known to make [AB] unstable. The medical team failed to check his medical history and failed to heed our warnings that certain medication combinations make [AB] unstable. Each time [AB] was forcefully injected and/or transferred to HDU this can be directly attributable to prescribing [AB] an unsuitable medication combination pre-document in his medical history as causing [AB] agitation and stability problems. The family believes we have a right to highlight this to the treating team and this must not be confused and misrepresented by the treating team as interference.16

62. In another document provided to the review Tribunal, AC outlined his

submissions in reply to the submissions made by the PTG and addressed a

report prepared by two treating doctors. Much of that document traverses issues

dealt with previously by AC and summarised above. The review Tribunal has

considered that document and the attachments to it as well as other documents

provided by AC, many of which are quoted or cited later in these reasons for

decision.

15 The doctor was an initial member of AB’s first treating team and the family stated that they and AB had a positive relationship with him

16 Document D1 page 15

22

63. AC also made submissions about why he considered the appointment of the PTG

as guardian and manager for AB is unnecessary. He contended that:17

(a) he is suitable and available, whereas the PTG’s availability is limited and

restricted;

(b) the PTG lacks in-depth knowledge about AB’s extensive medical history

over the last 17 years, which may result in the PTG making decisions that

are not in AB’s best interests;

(c) PTG staff have limited ability and resources to employ in their duties

towards AB;

(d) the PTG’s assigned guardian(s) are not usually there to observe AB’s

daily progress;

(e) the PTG’s assigned guardian(s) are not there to take AB on daily or

overnight leave;

(f) the PTG will not appoint a dedicated guardian and so the guardian looking

after AB will not have sufficient depth of knowledge and extensive

medical history to provide doctors with information about what is likely to

work and not work for AB. Rather the PTG are likely to accept and rubber

stamp all advice received from the treating team. From the events

highlighted in documentation provided by AC this can be very dangerous

and lead to AB being given medication which makes him unstable and

vulnerable to attack; and

(g) the PTG should be appointed as the last resort.

64. At the review hearing, AC reiterated those submissions and added that:

(a) there was little liaison between the PTG and AB’s family regarding AB’s

treatment, care and support, particularly in the period when AB was

unable to leave his room;

(b) the family’s dedication to serve AB far exceeds that of the PTG;

(c) AB is more likely to talk to his family and less likely to talk to the PTG,

and that will lead to his wishes being catered for better through his family;

17 Document D1 page 15

23

(d) the continued appointment of the PTG will constitute ongoing risks for

AB that his family is not prepared to accept;

(e) the appointment of the PTG rather than the family is inconsistent with

provisions of the Human Rights Act 2004 (considered later on these

reasons for decision).18

Our observations about aspects of those submission are set out later in these

reasons for decision (see [175]).

Consideration of statutory criteria for guardian and manager

65. In order to deal comprehensively with the submissions of AC, the treating team

and the PTG, it is appropriate to consider in some detail:

(a) the statutory criteria for the appointment of a guardian and manager19

including the statutory prohibition on the appointment of the PTG where

an individual who is “otherwise suitable for appointment” has consented

to be appointed (section 9(4), (5));

(b) whether, if he were appointed as guardian or manager, AC’s interests are

likely to conflict with AB’s interests to the detriment of AB’s interests;

(c) human rights considerations;

(d) the operation of the decision-making principles in the circumstances of

this case.

66. Section 10(2) contains criteria that must be met before a person (other than the

PTG) can be appointed. There is no issue that AB’s father satisfies those

criteria.

67. Although the GMP Act expressly contemplates that either the PTG or an

individual may be appointed as a guardian and/or a manager, the GMP Act also

makes it clear that if in a particular case a choice between the two can be made,

the categories of potential appointees are not equal.

18 Transcript of proceedings pages 37, 47-4819 Quoted at [33]

24

68. In Public Trustee for the ACT v Lee20 an appeal Tribunal considered the operation

of the predecessor to the current version of section 9 of the GMP Act. That

appeal Tribunal referred to the terms of section 9(4) and (5) and to the

Explanatory Statement of the 1991 Bill which, it wrote, “clearly indicated that

where there is a suitable, natural person available such as a relative or close

friend, that person takes precedence in terms of appointment over a public

official, or in management matters, over a trustee company.”21

69. Section 10(3) provides that someone (other than the PTG) “may” be appointed as

a guardian or manager “only if” the Tribunal is satisfied that:

(a) the person will follow the decision-making principles (set out in section 4

of the GMP Act); and

(b) is “otherwise suitable for appointment” (section 10(3)).

70. The key criterion in relation to an individual is that they are “otherwise suitable”

for appointment (section 9(4), (5), section 10(3)). When deciding whether a

person is “otherwise suitable”, the Tribunal must take into account the factors

listed in section 10(4).

71. Although the Tribunal “must take into account” those listed matters, they can

affect, but need not determine, whether a particular person is suitable for

appointment as a guardian or manager.

72. In many instances it will be obvious that an individual will follow the decision-

making principles and is “otherwise suitable” for appointment.

73. The Tribunal must consider closely the matters listed in the GMP Act and may

consider other matters, if the suitability for appointment of an individual is

contested. The present proceeding is such a case.

74. As noted earlier, the review Tribunal accepts that AC:

(a) has consented in writing to be appointed as AB’s guardian and manager

(section 9(4), (5));

20 Public Trustee for the ACT v Lee [2014] ACAT 6921 Public Trustee for the ACT v Lee [2014] ACAT 69, [8], [9], [13]

25

(b) is an adult (section 10(2));

(c) has informed the Tribunal on oath that he:

(i) has not been convicted or found guilty of an offence involving

violence, fraud or dishonesty;

(ii) has not been removed from office as a guardian manager;22 or

(iii) is not bankrupt or personally insolvent (section 10(2));

75. We are also satisfied that AC:

(a) is compatible with AB (section 10(4)(c));

(b) lives in the ACT (section 10(4)(d));

(c) will be available and accessible to AB (section 10(4)(e)); and

(d) is competent to exercise the functions of a guardian and manager (section

10(4)(f)).

76. The review Tribunal also notes the evidence of a close and continuing relationship

between AB and his parents, and takes into account the desirability of

preserving the existing relationship with AB’s family (section 10(4)(b)).

77. The review Tribunal is not aware of the views and wishes of AB in relation to the

appointment of a guardian or manager, or who should be appointed as a

guardian or manager (section 10(4)(a)). As noted earlier, he has had little or no

verbal communication with others in recent months. The Tribunal was advised

that AB was told about the review hearing. However, he did not attend. At the

review hearing AC and his wife, a treating doctor and the PTG’s officer were

unable to say what his views and wishes are.

78. The question for the review Tribunal is whether, despite the findings that AC

meets those statutory criteria, he is “otherwise suitable” for appointment as the

guardian and manager for AB. To answer that question it is necessary to

consider AC’s relationship with the treating team.

22 He was, however, refused appointment as guardian and manager in the previous proceedings that resulted in the current roles

26

79. Later in these reasons we consider whether the interests and duties of AC are or

are not likely to conflict with the interests of AB to the detriment of AB’s

interests (section 10(4)(g), (5)).

Relationship with carers

80. As well as the considering the factors listed above, the review Tribunal must take

into account the desirability of preserving existing relationships with “any other

carers” (section 10(4)(b)). Section 6 of the GMP Act provides:

6 Meaning of carerIn this Act:carer—a person is a carer of someone else (the dependant) if—

(a) the dependant is dependent on the person for ongoing care and assistance; and

(b) the person cares for the dependant otherwise than because of—

(i) a commercial arrangement; or

(ii) an arrangement that is substantially commercial.Example of a carerMs S suffers from a severe brain injury because of a car accident and requires constant care. Her spouse, 2 children aged 18 and 11 and a family friend share her care and would each be a ‘carer’.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

81. AB has been resident at the AMHU at the Canberra Hospital almost continuously

since 20 May 2016. In that period he has been, and remains, dependent on the

treating team for ongoing care and assistance. The treating team cares for him

otherwise than because of a commercial arrangement. Consequently, in deciding

who is most suitable to be the guardian and manager for AB, the review

Tribunal must take into account the desirability of preserving the existing

relationship between him and the treating team.

82. At this stage, it is not possible to predict how long AB will remain dependent on

that team for ongoing care and assistance. Even if he transitions out of the

AMHU to other accommodation (with his family or ultimately his own unit), he

will still be dependent for the foreseeable future, at least to some degree, on the

treating team for ongoing care and assistance.

27

83. As noted earlier:

(a) the treating team contended that, for various reasons, members of the

AB’s family are not in a position to act in AB’s best interests, and the

team does not support the appointment of AC as guardian and manager

(see [38]); and

(b) AC sought to refute all imputations against him (see [46]-[61]).

84. It is appropriate, indeed necessary, to look at examples of the correspondence

between AC and the treating team and other medical professionals, including

the Chief Psychiatrist of the ACT, to test his refutations, particularly in relation

to:

(a) the treatment provided to AB at the AMHU;

(b) where AB might live before he is discharged from the AMHU (including

overnight visits) and after his discharge; and

(c) applications for support for AB as part of the NDIS.

85. In undertaking this exercise, we reiterate what we said at the review hearing that

this review Tribunal is not reviewing the PTO or the nature of the treatment

being provided to AB under that order.23 These proceedings are confined to

questions about the possible variation or revocation of the guardianship and

management order made on 18 April 2017. Consequently, we express no views

about the adequacy of the treatment that was provided or is being provided by

the treatment team. Rather, we are concerned to assess:

(a) the accuracy of some of AC’s responses to what he perceived as

allegations made against the AB’s family (and him in particular); and

(b) the relationship between the treatment team and the AB’s family

(particularly AC),

23 The Mental Health Act 2015 makes it clear that the chief psychiatrist is responsible for the treatment, care or support of a person to whom a psychiatric treatment order applies (section 62(1)) and that, in making a mental health order in relation to a person, the Tribunal must not order a particular form of treatment, care or support (section 57)

28

as factors relevant to deciding whether, by reference to the criteria set out in the

GMP Act, AC is “otherwise suitable” for appointment as the guardian and

manager of AB in place of the PTG.

86. The following observations and quotes are drawn from sets of email

correspondence that AC provided to the review Tribunal. We do not know

whether those documents comprise a complete record of what passed between

AC and the treating team and other recipients of his emails. The absence of

emails or letters in reply might indicate that the recipients did not respond in

writing. We do not know whether, or how, they responded. Nonetheless, the

numerous items of correspondence help the review Tribunal gain a picture of

AC’s views and the views of family members recorded by him.

Critique by family of the medical treatment provided

87. The correspondence that AC provided to the review Tribunal illustrates in detail

the nature of the disagreement between AB’s family and the treatment team

concerning the medication being administered from time to time by the

treatment team and, less frequently, other aspects of the treatment program. The

correspondence spans the period from 19 December 2016 until 24 July 2017.

The following excerpts from some of the emails illustrate the nature of the

concerns.

88. On 19 December 2016, AC provided a brief background to AB’s mental illness

since the age of 16, including periods of hospitalisation and the administration

of antipsychotic medications. He referred to his “tens and tens of emails” sent to

a previous doctor (but apparently never acknowledged by him) “seeking to work

together as a team to help [AB] recover painlessly and quickly.” He noted that,

in May 2016, AB had been diagnosed with a Catatonia condition (which caused

him to suffer immobility, mutism and loss of appetite) on top of his

bipolar/schizophrenia. AB was admitted to the AMHU on 20 May 2016 and

experienced a “productive” relationship with the treating team of that time

which was characterised as involving a “cooperative approach rather than

confrontationist” and was respectful, inclusive, motivational, inspiring,

accommodating, tolerating and compassionate. That relationship continued until

21 October 2016. The relationship with the second set of members of the

29

treating team was described as “unproductive” and the approach was described

as “confrontationist rather than cooperative,” and characterised by

“disengagement” with the family when it came to formulating or adjusting the

treatment plan, a “devaluing” of the family’s written daily observations of AB,

and a “reward and punishment approach” to try to change AB’s behaviour.

Among other things, AC sought the replacement of the consultant treating

psychiatrist because she was “pursuing a confrontationist approach when

dealing with [AB] and his family.” He stated that the new psychiatry consultant

“must pursue” similar approaches to that used initially.

89. On 19 January 2017, AC wrote concerning incidents at the hospital on previous

days. He stated that AB’s behaviour was a “clear indication that the current

daily medication is not working,” AB’s recovery had “received a big setback,”

and he was not fit for discharge or transfer to a rehabilitation institution. AC

urged the replacement of a named doctor as that doctor’s treatment strategy was

“a complete failure.”

90. In a detailed email dated 31 January 2017, AC listed a series of strong criticisms

of the treatment team and of the treatment administered to AB. He rejected as

“unworkable” a suggestion to have the social worker be the contact point

between the family and the treating team because “we need direct

communication with the treating team.” He asserted that “we have every right to

provide input and be part of the treating team.”

91. In his email message to the Chief Psychiatrist and others dated 6 February 2017,

AC urged specific changes to medication. He wrote:

The family do not wish to dictate to psychiatrist which medication should be used to treat [AB’s] condition, however [AB’s] family will speak up when the medication is not working and when it is making [AB’s] condition worse. In such cases, the least we expect from the ACT Chief Psychiatrist is to reinstate [AB] back onto a known combination to stabilise [AB’s] condition, before deciding what treatment strategy to pursue. [AB] MUST not be a guinea pig allowed to suffer while the doctors pursue and trial and error approach.

92. In response to the prospect of another psychiatrist on the treating team, AC

expressed the hope that the psychiatrist would adopt “an inclusive and

cooperative strategy” where the family could be part of the recovery process

30

and where “their daily observations are valued inputs to steering the daily

medication for [AB].” He added, “[AB’s] family will insist upon knowing

[AB’s] daily medication dose.” If the newly assigned psychiatrist were to adopt

a similar strategy to that of his predecessor “then we resume to exercise our

rights in exposing such unacceptable strategy to higher authority.”

93. In a detailed email dated 20 February 2017 critical of the treatment at the NPI AC

wrote:

[AB’s] case is not complex, if [the Chief Psychiatrist] and her delegate listen to [AB’s] family, as they observe [AB] more than anybody else and they know what medications work and what medications do not.

94. He listed the changes in medication that he stated would treat the cause and not

just the symptoms.

95. On 24 February 2017, AC sent an email concerning an “ugly incident” at the

AMHU which was “yet another evidence that the current medication is

unworkable and directly causing [AB] to be unable to control his agitated

behaviour once he is provoked.” AC detailed the phasing out of named

medications and their replacement with other named medications of specified

dosages. He reiterated that “[AB’s] case is not complex as they claim, they

make it complex by keeping him on this wrong medication.”

96. On 15 March 2017, AC sent a detailed critique of the Sydney doctors’ report,

including taking issue with their statement in Recommendation 1 that AB’s

current regime was a sub-therapeutic dose and that his partial symptomatic

response would appear to support that.

97. On 5 April 2017, AC attributed AB’s behaviour to a particular medication and

stated that he understood that behaviour would stabilise once that medication is

“completely phased out.”

98. In his email dated 28 April 2017, AC reported that at a meeting including with

representatives of the PTG:

[AB’s] parents provided a brief account on why [AB] has been in the AMHU for nearly a year. We explained that the key factor in his long stay has been the failed treatment strategy adopted by [two named doctors],

31

which was based on disengaging with [AB’s] parents and on discarding their concerns and their 16 years of knowledge of what medications worked for [AB] and what medications did not work. [AB] prolonged stay in the hospital is directly attributed to the insistence of [those two named doctors] on giving [AB] unworkable combination and dosage of medication with total disregard to his parent’s concerns and knowledge of past observations.

99. On 3 May 2017, AC sent an email criticising an apparent type of behaviour

therapy being used by the treating team.

100. On 5 May 2017, AC sent an email recording key points raised during a meeting

on 4 May 2017 including an explanation that AB’s symptoms of mutism,

mobility and weak physical strength “will only be resolved by working with the

treating team in the fine tuning the dosage of the current medication cocktail.”

101. On 11 May 2017, AC stated that the family had “raised serious concern” about

the treating team’s strategy involving specified medication including the timing

and dosage of the medication.

102. On 18 May 2017, AC sent an email reporting on a meeting in which AB’s

family expressed their “deep concern” regarding the timing of the cessation of a

certain type of medication and their concern about a proposed behavioural plan

for AB which, the family considered, would not deliver the desired outcome.

103. In response to questions from the treating team about aspects of AB’s life, AC

wrote on 24 May 2017 that AB’s family “strongly believes that the current

setback is caused by failed treatment plans, which were designed and

implemented after the departure of [the initial members treating team], and

without the involvement of [AB’s] family.” He referred to AB being given

medication “known to make him agitated” and to changes of medication or

dosages “for the worst when [AB] stabilises on a particular medication/dosage.”

He attributed AB’s bed boundness to “incorrect medication/dosage.”

104. By contrast in an email dated 17 June 2017, AB’s brother responded to an email

from a registrar doctor involved with AB’s treatment team. The registrar doctor

had enclosed materials with that email and invited AB’s brother to contact him

if he wished to discuss any issue. AB’s brother made observations and asked

questions about the particular form of treatment being proposed and concluded:

32

If this email is about maintaining and strengthening a channel between the family and the treating team, the family welcomes this level of cooperation and will be committed to working with the treating team to achieve a good outcome.

105. In his email dated 29 June 2017, AC sought answers to AB’s brother’s

questions and repeated that AB’s family “are not obstructionist but they have

the right to seek clarity.” He also commented on AB’s previous reaction to

specific medication and stated:

We have a duty towards [AB] and towards the treating team to communicate our observation of [AB’s] reaction to medication. We do not interfere in prescribing medication, and that is the responsibility of the treating team; however, our input and observation can greatly benefit the treating team when they decide what medication they can give [AB].

106. In his email dated 6 July 2017, AC commented on changes in medication and a

behavioural plan. He wrote that the family “are not against it but so far it did not

work. He added that [AB] can’t be left in this condition.” The family requested

the treating team to invite another psychiatrist from within Canberra who has

not seen AB previously to assess AB and provide the family with their

recommendation. In other words, the family sought a third medical opinion.

107. In his email dated 13 July 2017, AC noted that psychiatrists who have assessed

and cared for AB have not reached a consensus on the nature of his mental

illness. He also referred to the second stage of the behavioural management plan

and stated that, while the family “will continue to support” the behavioural

management plan, the family is keen to have its specified concerns addressed.

108. In referring to and quoting from that email correspondence, we have been

careful not to identify the addressees or to name individual doctors. Nor have

we described the incidents referred to in the emails or identified the specific

medications that were the subject of the correspondence. Our purpose is not to

make observations or findings about any allegations, but to illustrate features of

the relationship between AB’s family and successive members of the treating

team over the period covered by that correspondence.

33

109. It is relevant to note not only the frequency with which AB’s family reported

their disagreement with the treatment team, but also the language in which that

disagreement was expressed.

110. In his email message dated 19 December 2016 referred to earlier, AC described

the family witnessing and experiencing “a culture of disrespect, intimidation,

provocation, incompetency, humiliation, discrimination, and abuse of power”

by the AMHU management, some of the nurses, and some of the team leaders.

In support of that assertion, he listed examples of incidents in October and

December that year, and described some actions variously as unjustifiable,

completely false, biased and heartless, or discriminatory. His “requests” were in

the forms of demands, including demands for answers to particular questions

and a demand that the visiting rules for the family “must be lifted immediately

and unconditionally.”

111. In his email dated 31 January 2017, AC described the deterioration of the

mental and physical health of AB as due to the “unworkable treatment”

designed by one doctor and “blessed” by another. He stated that from the day

those doctors took over as the treating team, they “declared war on us and

described our influence on [AB] as poisonous.” He referred to AB being

“unjustifiably injected”, and criticised one doctor for stopping a particular form

of medication when it was working. He asserted that AB was being subjected to

daily “unnecessary suffering and torture because of the unworkable cocktail of

medication.” It was clear to him that one doctor was “incapable” of treating AB

and that all of that doctor’s treatments were “guess work.” The other treating

doctor chose to “support and bless” that doctor “causing continued suffering”

for AB and his family.

112. Many of the allegations in the emails dated 19 December 2016 and 31 January

2017 were repeated in an email to the Chief Psychiatrist on 6 February 2017. In

addition, one of the treating doctors was described as “malicious in her

administration of medication” and the doctor’s approach was described as

“medical negligence at best.” The doctor was accused of trying “many tricks,

including punishing [AB] severely.”

34

113. Again, the purpose of recording those passages is to illustrate the nature of the

relationship between AB’s family and the members of the treating team from

time to time. We are not endorsing those criticisms of the treating team or their

treatment of AB. This review Tribunal did not receive evidence about the

treating team’s responses to those criticisms. Nor do we need that evidence for

the purpose of these proceedings. However, we note again that repeated

allegations of “brutal and barbaric” treatment of AB at the NPI and criticisms of

how he was transported to Canberra do not seem to have been supported (and

some of them are refuted) by a review dated 19 May 2017, the report on which

was provided to the review Tribunal by AC.

114. The depth of feeling (and one explanation for it) is illustrated in the following

passage from a document provided by AC for these proceedings:

Yes, [AB’s] family including [AC] felt angry and frustrated and they felt that they are being punished and so our son because from past observations we knew that the treating’s team medication was unworkable and the treating team chose to ignore his pain.24

Accommodation before and after discharge from the AMHU

115. Decisions will have to be made in the foreseeable future, possibly soon, about

where AB will live. His transition from the AMHU is an objective of the

treatment plan, and the accommodation options include AB’s parents’ home and

eventually AB’s flat. It is clear that being able to have appropriate decisions

made about AB’s accommodation is integral to the effectiveness of the

treatment plan, and that AB’s transition back into the community might be

achieved in a graduated way, including periods of leave from the AMHU for

some days at a time.

116. The issue for the review Tribunal is who is best placed to make decisions about

where AB is to live.

117. In an email dated 5 January 2017, AC recorded what he said was:

(a) AB’s “expressed ... unhappiness and dismay” (indeed his “refusal,”

expressed verbally in the presence of a team leader) at being asked to

24 Document D1, page 31

35

attend a 12 week Step Up Step Down program when he had not fully

recovered from catatonia and his mental illness;

(b) AB’s statement that the treating team “want to get rid of me, because they

are frustrated as they have neither reached a definitive diagnosis nor

prescribed the right medication;”

(c) AB’s statement that, when the time comes for his discharge from the

AMHU, he had his family to look after him if needed;

(d) AB’s “request to grant him unlimited leave, so that [AB] can spend

quality time with his family in pursuit of speeding up his recovery.”

118. AC wrote on 18 January 2017 that “we fear that [AB] is being prepared for

discharge at a time when [AB’s] family repeatedly urging the treatment team

not to discharge [AB] because [AB] is not fit for discharge” for specified

reasons that were, in summary, that he had “not fully recovered from Catatonia

and from his underlying mental illness.” Discharging AB while he was still

taking a particular form of medication “is very high risk strategy neither [AB]

nor us will accept it.”

119. The following day, after AB spent the afternoon on leave with his mother, AC

wrote that a doctor had contacted him by phone and “reiterated his message for

the treating team strategy to rush the discharge” of AB. AC “reiterated the

reasons for why [AB] is not fit for discharge and high risk for his mental and

physical well-being.”

120. On 3 April 2017, AC sent an email setting out the main topics covered during a

meeting on Friday, 31 March 2007. On the topic of overnight leave for AB, AC

wrote:

[AB’s] family expressed willingness to take [AB] on overnight leave once [AB’s] anger and agitation are stabilised and so far that have not been achieved. [AB’s] anger and agitation will gradually subside. As agreed, [AB’s] family will be the judge on whether or not it is safe to take [AB] for overnight leave.

121. In relation to the “need” for AB to join the Step Up Step Down Program, AC

wrote:

36

[AB’s] family never objected for [AB] to join such a program, but they made it clear that joining such a program should be voluntary and after [AB’s] mental illness becomes stabilised.

122. On 5 April 2017, following AB’s mother taking him for a period of leave the

previous day during which he “experienced periods of uncontrolled laughter,

tension, anger and agitation” and his behaviour remained “unpredictable”, AC

wrote that AB’s “current unpredictable behaviour remains to constitute a safety

risk for his family which justify the reason why we believe [AB] is not yet ready

for overnight leave.” AC repeated that opinion in an email dated 6 April 2017.

123. On 10 April 2017, AC wrote that for four consecutive days AB had not left his

hospital room other than to go on day leave with family members. On those

occasions he preferred to stay in the car rather than to walk, apparently due to

mobility problems. AC wrote that the family did not object to AB joining Step

Up Step Down but wanted AB to be “in a physical and mental condition that

allows him to take advantage from such a program.”

124. On 28 April 2017, following a meeting with members of the treating team and

representatives of the PTG, AC wrote:

All current plans to discharge [AB] to any rehabilitation institutions while he is in this deteriorated mental and physical condition will be totally counterproductive and most importantly will not be in the best interest of [AB]. In our assessment, the focus currently should be on treatment not on rehabilitation.

125. Although by that stage AB had been in the AMHU for almost a year, there is no

record in that email of what the treating team was proposing in relation to his

rehabilitation and discharge.

126. On 5 May 2017, following a meeting on the previous day, AC reported that AB

was “facing three major symptoms namely mutism, mobility and weak physical

strength.” That and other observations:

reinforces our repeated call that while [AB] is in this deteriorated physical and mental condition, having him discharged to any rehabilitation institution will be counterproductive and will not be in the best interest of [AB] – all efforts should be on treating [AB]. If [AB] is discharged while he is in this deteriorated condition, [AB] will not benefit at all from what the rehabilitation institution will provide – it will make his condition worse and delay further his recovery. Our advice to the

37

treating team who working with the guardian on speeding up his discharge is to rethink their strategy and take [AB’s] family concern very seriously.

127. Again, it is not possible to say from that email report what discharge or

rehabilitation was being considered by the treating team at that time.

128. After meeting with members of the treating team on 10 May 2017, AC wrote on

the following day that:

(a) the family had informed a treating doctor that “if [AB’s] mobility

improves then the family is prepared to take [AB] on overnight leave;”

and

(b) that doctor “informed [AB’s] family that the treating team would like to

keep working with the family focusing on treating [AB] before

considering any plan for discharge.”

129. On 13 July 2017, following another meeting, AC wrote about the behavioural

management plan (which involved leaving food on a table placed outside AB’s

room, apparently designed to prepare him for discharge) and listed some

specific questions and concerns in relation to aspects of that plan. He continued:

While [AB’s] family will continue to support [the doctor’s] behavioural management plan, [AB’s] family is keen to have the above concerns addressed.

[AB’s] family continued support to [the doctor’s] behavioural management plan is another undisputed proof that [AB’s] family are not obstructive; instead they are very truthful in their cooperation and involvement.

Proposed application for NDIS support

130. Another issue for this review Tribunal is who is best placed to make decisions

about seeking NDIS support for AB.

131. There was little discussion about NDIS matters in emails provided to the review

Tribunal. On 18 May 2017, AC sent an email to various medical professionals

and the PTG, stating that there had been communications between the PTG’s

officer and the social worker in relation to completing the NDIS application.

38

All this without informing [AB’s] parents. Liaise with [AB] parent must take place not only at the time of making decision but also before and during any request raised by the treating team. [AB’s] lack of communication does not mean he is giving the treating team or the guardian the right to go ahead with NDIS application. (Errors and emphasis in original)

132. In an email dated 25 May 2017, AC reported on a meeting, which he noted did

not include a representative of the PTG. He referred to the treating doctor’s

frustration that AB was still largely immobile, mute and physically weak for

more than four weeks. AC continued:

His frustration and stress stem from a failed treatment strategy which focused on portraying [AB] as a permanently impaired patient requiring discharge to a rehabilitation institutions, which justifies the need for the NDIS. (Emphasis in original)

133. Later in the same email, AC expressed “our assessment” that the treating doctor

did not have a treatment plan but, along with another doctor, was:

implementing their Grand Plan which is to portray [AB] as a permanently impaired patient requiring discharge to a rehabilitation institutions, which is why they are hurrying up to apply for the NDIS. With this Grand Plan, [AB] and his family will be off their backs so that other institutions can deal with them.

134. In their statement dated 22 June 2017, two treating doctors wrote that the family

had declined the NDIS package application which would assist in transitioning

AB to community care, once his condition has stabilised.

135. However, as noted earlier, at the review hearing AC said that he is 100 per cent

for NDIS support, and as guardian he would want power to apply for it. The

potential for NDIS support to assist in the rehabilitation of AB, the process for

obtaining that support, and a possible explanation of the change in attitude by

AB’s family, are discussed later in these reasons (see [176] to [186])

136. The documented conflict between the opinions of AC and the treating team

about the types of treatment appropriate for AB, and the clearly demonstrated

tension in the relationship between AC and the treating team, are relevant to the

three other matters that the review Tribunal should consider:

39

(a) the implications of AC’s opinions and actions for AB’s interests (section

10(4)(g));

(b) the protection of AB’s human rights; and

(c) the decision-making principles to be followed by a guardian and manager

for AB.

As will be seen from the following discussion, similar evidence and reasoning

applies to those three matters.

Implication of AC’s opinions and actions for AB

137. The review Tribunal must take into account:

whether the interests and duties of the proposed guardian or manager are likely to conflict with the protected person’s interests to the detriment of the protected person’s interests. (section 10(4)(g))

138. To understand the scope of that criterion, we have to consider the definition of

‘interests’ in section 5A of the GMP Act.

5AWhat are a person’s interests?A person’s interests include the following:(a) protection of the person from physical or mental harm;(b) prevention of the physical or mental deterioration of the person;(c) the ability of the person to—

(i) look after himself or herself; and(ii) live in the general community; and

(iii) take part in community activities; and(iv) maintain the person’s preferred lifestyle (other than any part of

the person’s preferred lifestyle that is harmful to the person);(d) promotion of the person’s financial security;(e) prevention of the wasting of the person’s financial resources or the

person becoming destitute.

139. So long as the PTO is in operation, the Chief Psychiatrist is responsible for the

treatment, care and support of AB. The information before the review Tribunal

indicates that the treating team is working towards AB moving from the AMHU

to live elsewhere, possibly with his parents and then in his flat.

40

140. The guardianship and management application of the social worker shows that

since at least March 2017 the treating team has wanted to plan for AB’s

discharge and his subsequent transition back into the community.

141. The Tribunal Review Report of two treating doctors dated 12 April 2017, in

relation to the PTO, gave some indication of the proposed future treatment and

possible outcomes of that treatment.

If allowed to proceed without obstruction, comprehensive mental health treatment (both inpatient and in the community) is anticipated to reduce the symptoms of chronic schizophrenia and promote overall health and well-being. Clinical management by the ACT Community Mental Health following discharge will provide comprehensive recovery-based and client-centred treatment that will aim to optimize [AB’s] functioning in the community.

142. At the review hearing, although a treating doctor frankly acknowledged that he

could not say whether AB is permanently impaired, he expressed the hope that

AB would come out of the ward “quite soon... sooner rather than later” and

assumed (in the absence of communication from AB) that AB might like to live

at home with his parents or possibly in his flat nearby.25

143. It is clearly in AB’s interests that he be protected from mental harm, that if

possible his mental deterioration be prevented, and (in the medium to longer

term) that he be given opportunities to regain the ability to look after himself

and live in the general community.

144. AC stated that he will make sure his performance of the duties as guardian and

manager would not conflict with or disadvantage his son’s interests, and that he

“worked and will continue to work with past, current and future health

professionals in the best interest of [AB], and there will be no conflict of interest

as our collective interest is to see [AB] leads a better quality of life” (see [44](h)

and (i)).

145. So far as we can tell, there would be no conflict between the duties of AB’s

father as guardian and manager and AB’s interests. AC’s expressed interest is to

see AB lead a better quality of life and to assist his recovery by providing

“unwavering daily support and care.”

25 Transcript page 6

41

146. However, there is evidence that AC’s repeated interventions with the treating

team impede and interfere with a treatment program designed to reduce AB’s

symptoms of chronic schizophrenia and to promote his overall health and well-

being. Consequently, we are satisfied for the purposes of section 10(4)(g) of the

GMP Act that AC’s actions (although presumably well motivated) appear to

conflict with, and are likely to conflict with, and operate to the detriment of,

AB’s interests

Human rights considerations

147. At the hearing, AC referred to sections 11, 12 and 30 of the Human Rights Act

2004 which, in his submission, supported his application to be appointed as

guardian and manager for AB. The parts of those sections on which he relied

provide:

30 Interpretation of laws and human rights

So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.

11 Protection of the family and children(1)The family is the natural and basic group unit of society and is entitled to be protected by society....

12 Privacy and reputation

Everyone has the right—(a) not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily; and ...

148. AC’s submissions in relation to those sections were brief. He simply quoted

those sections which, in his submission, “strengthen” sections 9(4) and 10(4) of

the GMP Act. Therefore, he submitted, AB’s family “would like to reclaim our

rightful duty to be the guardian and manager for our son.”26

149. A different human rights argument was advanced by the PTG, informed by

medical opinions about the best treatment for AB. In order to understand that

submission it is relevant to record a recommendation of three Sydney based

specialists prepared in relation to his stay at the NPI. Their report dated

22 February 2017, was prepared in light of AB’s history, their observations of

26 Transcript of proceedings page 38

42

him in February 2017 and communications from AB’s family. It included five

recommendations about future forms of treatment. Relevant to these

proceedings is Recommendation 1:

It is notable in the treatment summary provided to us that at various points in time [AB] had medication trials of antipsychotics that could reasonably be considered to have been inadequate in dose and/or duration of treatment. It is our understanding that concern about his physical health status and discussions with [AB’s] family have at times been significant influences in determining his treatment plans. We note [AC’s] views about past treatment having been more effective. A comprehensive review of the treatment history is warranted so an informed decision about effective antipsychotic pharmacotherapy can be made. His current treatment regime is subtherapeutic in dose, and [AB’s] partial symptomatic response would appear to support this.

150. In their statement dated 22 June 2017 (summarised at [37] and [38] above), two

treating doctors noted that the advice regarding management was to trial higher

doses of antipsychotics “despite the protestations of the family” and to consider

ECT. They stated that AB’s family is “clearly opposed to the medication regime

outlined by” the three Sydney specialists which the ACT Health treating team

“feel duty-bound to attempt to fulfil in [AB’s] best interests.”

151. In its written submissions of 30 June 2017, the PTG referred to AB’s right to

receive the treatment that is most likely to assist him to recover and to have the

best chance to resume his previous life. The PTG:

(a) referred to the specialist opinion of the doctors in Sydney that AB has

been significantly undertreated and the recommendation that he be given a

higher treatment dose, while noting the complexity of the relationship

with his family; and

(b) stated that the treating team had informed the PTG that they continue to

undertreat AB “out of consideration for” AC’s “ongoing intensive

involvement.” Although the PTG does not have authority to direct

psychiatric treatment for a person who is not willingly receiving the

treatment, the PTG requested the treating team to reconsider this position,

particularly with regard to AB’s human rights.

43

152. The sections of the Human Rights Act 2004 on which AC relied are consistent

with (and in particular circumstances could be seen as supporting) the operation

of sections 9(4) and 10(4)(b) of the GMP Act. However, they do not compel the

variation of the current order to remove the PTG as guardian and manager and

to appoint AC in place of the PTG.

153. Section 11 of the Human Rights Act recites the entitlement of the family (as

defined) to be protected by society. It is clear from section 12 of the Human

Rights Act that everyone has the right not to have specified things (such as their

family) “interfered with unlawfully or arbitrarily.” To the extent that the making

of the current order has interfered with AB or his family, that order was made

lawfully in accordance with the provisions of the GMP Act. The current order

was not made arbitrarily. It followed a hearing in which the lawfully constituted

original Tribunal heard evidence and submissions from relevant persons and

then made a decision by reference to statutory criteria that the original Tribunal

was obliged to consider. AC might disagree with the decision, but that does not

make it unlawful or arbitrary.

154. Although the human rights submissions put by AC were, understandably,

advanced in relation to the meaning and operation of the GMP Act, the

operation of the Mental Health Act 2015 is also relevant. AB is the subject of a

PTO, and is receiving treatment, under that legislation.

155. It is not necessary to analyse that legislation in detail for the purpose of deciding

this case. We note, however, that the objects of the Mental Health Act27 and the

principles which must be taken into account by someone exercising functions

under that Act28 include numerous references to the rights of people with a

mental illness. The emphasis on the recognition and protection of their human

rights is not only evident in the terms of the Mental Health Act. It is clearly

stated in documents surrounding the passage of that Act. For example, the

Explanatory Statement for the Mental Health Bill 2015 and the Revised

Explanatory Statement for that Bill described in detail how the Bill was

compatible with the Human Rights Act 2004.

27 Mental Health Act 2015 section 528 Mental Health Act 2015 section 6

44

156. It is worth noting that, according to the Explanatory Statement, all of the section

6 Principles “also have deep roots in the right to the ‘highest attainable standard

of physical and mental health’.”29 The Explanatory Statement noted that this

right has migrated from the margins to the human rights mainstream, and traced

its inclusion in various international instruments. The Explanatory Statement

referred to much authoritative case law bearing out that the right to the highest

attainable standard of physical and mental health is incorporated in the right to

life and the freedom from inhuman or degrading treatment.30

157. Although that right is not expressly stated in the Mental Health Act, the

principles in section 6 include the principle that:

(e) a person with a mental disorder or a mental illness has the right to access the best available treatment, care or support relating to the person’s individual needs.

158. Having considered the sections of the GMP Act and the Mental Health Act

referred to above, the review Tribunal concludes that an order under the GMP

Act that facilitates AB’s access to the best available treatment, care or support

relating to his individual needs would be most consistent with the protection of

his human rights. In doing so, we have interpreted the GMP Act in a way that is

compatible with human rights. We are not satisfied that appointing AC as

guardian would meet that objective.

Decision-making principles

159. AC stated that he is capable of following and adhering to the decision-making

principles (see [44](d)).

160. Section 4 of the GMP Act provides:

4 Principles to be followed by decision-makers(1) This section applies to the exercise by a person (the decision-maker) of a function under this Act in relation to a person with impaired decision-making ability (the protected person).(2) The decision-making principles to be followed by the decision-maker are the following:

(a) the protected person’s wishes, as far as they can be worked out, must be given effect to, unless making the decision in

29 Explanatory Statement paragraph 2.22.30 Explanatory Statement paragraphs 2.23-2.27

45

accordance with the wishes is likely to significantly adversely affect the protected person’s interests;(b) if giving effect to the protected person’s wishes is likely to significantly adversely affect the person’s interests—the decision-maker must give effect to the protected person’s wishes as far as possible without significantly adversely affecting the protected person’s interests;(c) if the protected person’s wishes cannot be given effect to at all—the interests of the protected person must be promoted;(d) the protected person’s life (including the person’s lifestyle) must be interfered with to the smallest extent necessary;(e) the protected person must be encouraged to look after himself or herself as far as possible;(f) the protected person must be encouraged to live in the general community, and take part in community activities, as far as possible.

(3) Before making a decision, the decision-maker must consult with each carer of the protected person.(4) However, the decision-maker must not consult with a carer if the consultation would, in the decision-maker’s opinion, adversely affect the protected person’s interests.(5) Subsection (3) does not limit the consultation that the decision-maker may carry out.

161. As noted earlier, it has not been possible in recent months to ascertain AB’s

wishes. Consequently, it is not possible for the decision-maker to give effect to

those wishes. The guardian and manager will need to follow the principles of

ensuring that:

(a) AB’s interests are promoted;

(b) AB’s life (including his lifestyle) is interfered with to the smallest extent necessary;

(c) AB’s is encouraged to look after himself as far as possible; and

(d) AB’s is encouraged to live in the general community, and take part in community activities, as far as possible.

162. Without limiting the consultation that a decision-maker may carry out, they

must consult with each carer31 of the protected person before making a decision.

However they must not consult the carer if the consultation would, in their

opinion, adversely affect AB’s interests.

31 ‘Carer’ is defined in section 6 of the Guardianship and Management of Property Act 1991

46

163. AC submitted that he is capable of following and adhering to the decision-

making principles. Section 10(3) of the GMP Act provides that someone other

than the PTG may be appointed as a guardian and manager “only if” the

Tribunal is satisfied that the person “will follow” the decision-making principles

and is otherwise suitable for appointment. Having regard to the current and

foreseeable circumstances surrounding the nature and extent of treatment which

AB requires, and how that treatment, care and support is being delivered by the

treating team (including the operation of the PTO), we are satisfied that AC

might have difficulty following all the principles.

164. The material referred to earlier in this decision demonstrates that, even if AB’s

family and the treating team share an objective for AB’s recovery, there is

considerable difference between them in how to work towards that goal. If AC

were to be appointed as guardian and manager, he would be obliged to consult

with the treatment team as AB’s carers (see [80] to [82]). However, he might

consider that obligation suspended if, in his opinion, the consultation with them

might adversely affect AB’s interests (see [137] to [146]).

165. At the review hearing, AC referred to differences between the family and the

previous and current treating teams. He submitted that, despite the fact that the

current treating team is “not as accommodating as the first treating team, that

did not constitute a stalemate situation.”32 He then stated:

Now, [AB] family is willing and committed to work closely with current and future treating teams as partner in the best interest of [AB]. We will assure the treating team that we work together to design an NDIS that is best for [AB]. We will work together on the best option to rehabilitate [AB], including the Step Up Step Down program.33

166. AB’s brother observed that, although it might appear to the review Tribunal as

if AC “has suddenly become a lot more cooperative,” from his perspective his

father “has been consistently cooperative.” That cooperation was proven with

the first members of the treating team.

We had no issues with them whatsoever, and it is unfortunate that we have had a bumpy ride with the latter treatment team, but it is a good sign that we are making progress together. ... But I would not characterise that

32 Transcript of proceedings page 3633 Transcript of proceedings pages 36-37

47

necessarily as just being as a result of my father becoming more cooperative, if I can say that.34

167. At the review hearing, a current treating doctor described an “intractable and

longstanding disagreement between particularly [AC] and the treating team”

about what is the right treatment for AB. He suggested that the current

guardianship and management order has had “some effect” on the behaviour of

members of AB’s family, allowing AB to leave hospital and spend longer

periods of time with his family.35 The doctor said that, “observing the course of

events, it didn’t happen and now it is happening.”36 In his opinion, “no other

arrangement has achieved that” for AB.37

168. The doctor attributed the recent change in AB’s behaviour to a combination of

factors including changes in his medication, a behaviour plan to encourage him

to be less isolated and to interact with people outside his immediate family, and

the change in the attitude and behaviour of AB’s family (partly as a result of the

current guardianship order).38

169. It was put to the doctor that he previously had concerns about AB living with

his family because they might not give AB his medication. The doctor stated

that he held that concern because of the nature of AC’s email traffic with the

treatment team expressing disagreement about the treatment they were giving

AB. The doctor continued, “I concluded from that he might not support it, but

now he’s supporting the treatment we’re giving him so far as I can see, so ...

Things have moved on.”39

170. Although it is a “complicated situation” which is to do with “the way different

people react in the circumstances,” the doctor said that “the evidence is that the

current arrangements seemed to be working in [AB’s] interests.” He thought

that since the oversight from an outside agency, there was at least a perceived

change in attitude in relation to the interactions of AB and his family and the

34 Transcript of proceedings page 5935 Transcript of proceedings page 4036 Transcript of proceedings page 4237 Transcript of proceedings page 4038 Transcript of proceedings pages 8, 4039 Transcript of proceedings pages 57-58

48

treating team.40 The doctor expressed concern that if the current arrangements

were to change, “we might go back to square 1.” 41

171. AC and AB’s brother took issue with the doctor’s assessment of the current

situation. AB’s brother pointed out that, in their report dated 22 June 2017, two

treating doctors described “periods of improvement alternating with periods of

deterioration” in AB’s mental condition in the period of his admission to the

AMHU.42 AB’s brother challenged the inference drawn by the doctor from the

change in circumstances since the guardianship order was made, stating that the

family has no control or influence over AB in terms of when he decides to come

home with them.43 He described as “fundamentally flawed” any statement that

the grant of guardianship to the PTG allowed AB to go on overnight leave and

that if a family member or members were made guardians things would go back

to square one.44

172. AC reiterated that previously the family had not agreed to overnight visits

because AB was in a very agitated state and was a safety risk.45 We understand

AC to be saying that the family did not simply refuse to take AB on overnight

visits, but did so for reasons that were given to the treating team at that time.46

173. Despite some recent changes in the interactions between AB’s family and the

treating team, we reiterate that we are satisfied that AC might have difficulty

following all the decision-making principles.

Other observations

174. We make three observations about other aspect of AC’s submissions.

175. First, his reasoning about why the PTG should not be guardian and manager

seems to proceed on the basis that a guardian and manager should provide a

high level of care and support to the protected person. That misunderstands the

role of the guardian and manager. A person is appointed to make decisions on

40 Transcript of proceedings page 40 41 Transcript of proceedings page 4042 Transcript of proceedings page 4343 Transcript of proceedings page 4444 Transcript of proceedings page 4445 Transcript of proceedings page 4446 Transcript of proceedings page 45

49

behalf of the protected person in relation to the matters specified in the order. In

that capacity, a guardian and manager is not required or expected to provide

care or support, although in a personal capacity they often do. Nonetheless, as

AC observes, the PTG is not in the same position as he is in relation to

understanding AB’s personal history, needs and wishes. That concern is

addressed by the current order requiring the PTG “to liaise with the protected

person’s family regarding the protected person’s treatment, care and support.”

176. Second, there was much discussion about whether AB might qualify for NDIS

assistance. The PTG’s officer advised that, when the PTG was appointed

initially, she said to AC that she would discuss an NDIS application with him.

At that time, AC raised a concern that he did not think it was appropriate to

apply. In his view, NDIS supports were not required because it was likely that

AB would get better. Once he was better, AB would not require such support

and he would be able to return to his independent living. However, the PTG’s

officer had spoken to the social worker and advised her to complete the forms.

Those forms had not been completed by the date of the review hearing.47 The

PTG’s officer would discuss any application with AC before it is submitted to

the National Disability Insurance Agency (NDIA).48

177. AC submitted:

(a) that a precondition of entitlement is that a person has a permanent

disability and to date no such diagnosis has been made in respect of AB;

and

(b) he would support an application for NDIS services for AB.

178. In relation to the prognosis for AB we note that:

(a) the Tribunal Review Report of two treating doctors dated 12 April 2017

described AB as having “long-standing treatment-resistant

schizophrenia;”

(b) at the review hearing, a current treating doctor stated that he does not

know if AB is permanently impaired. AB’s illness fluctuates, but he has a

47 Transcript of proceedings page 5048 Transcript of proceedings page 51

50

relapsing and remitting illness that seems to be following a chronic

course, so it is “likely” that AB will have some impairment for the rest of

his adult life. That said, the doctor added that he did not know what

treatments might emerge in the future and how AB’s illness might

respond to medication and his environment.49

179. Although the medical opinions clearly indicate a long-lasting and serious mental

illness, there is some evidence to suggest that AC does not accept that AB has

such a condition. Indeed, one reason that AC seemed to be reluctant was that he

understood that permanent impairment is a requirement to qualify for NDIS

support, and he did not consider that AB is permanently impaired.50 In his

answers on 24 May 2017 to a series of questions from a member of the treating

team about AB’s hobbies and other interests, social contacts, food, preferred

music and other matters, AC wrote three times that AB “is currently going

through a temporary and not permanent setback” (emphasis in original).

180. Despite the family’s apparent hope that AB will improve significantly, his

medical history to date (only some of which is quoted in these reasons for

decision) demonstrates that AB has a long-standing condition that, in some

form, is likely to affect him for the rest of his life. A current treating doctor has

left open the possibility that some treatment to cure his illness might be found in

the future. But experience since at least May 2016 shows that such treatment

does not yet exist. A guardian must make decisions on the basis that AB will

continue to need treatment, care or support in the immediate and foreseeable

future.

181. In the absence of evidence from the NDIA in relation to the operation of the

NDIS scheme, the review Tribunal is not able to say whether AB would qualify

for NDIS support and, if so, what services could be provided if an application

were made on his behalf. However, we note that:

(a) the NDIS website51 states that a person with “an impairment that is likely

to be permanent and the impairment makes it difficult to take part in

49 Transcript of proceedings page 5450 Transcript of proceedings pages 51-5351https://ndis.gov.au/about-us/our-sites/ACT.html#who ; see also

https://ndis.gov.au/ndis-access-checklist.html

51

everyday activities, can access the Scheme. A person needs to meet

disability or early intervention requirements, as well as age and residence

requirements;”

(b) the PTG’s officer advised the review Tribunal that a large proportion of

people for whom she has guardianship responsibilities and for whom

NDIS support has been sought with supporting medical reports, have

episodic mental health conditions, and no applications have been rejected

on the basis that the person’s condition is not permanent. But she stressed

that the NDIA would decide whether AB is eligible;52

(c) based on his experience with other people, a current treating doctor hoped

and anticipated that AB would be given an NDIS package by reference to

the course of his illness up to the point when the application is made;53

(d) the application process takes some months, specific types of

documentation must be provided to support an application, there would

need to be a planning meeting with the NDIA’s representative, the

assessment and decision in relation to that application would be made by

someone independent of the treating team and AB’s family, and any NDIS

program(s) would be reviewed annually.

182. We also note that the provision (or not) of NDIS services is just one factor in

developing and adjusting the program for the future treatment and possible

rehabilitation of AB. In the years before the NDIS, other options would have

been considered for someone in AB’s circumstances. The potential for NDIS

services to be provided is an additional option for the treating team (and AB’s

family) to explore, so that a comprehensive future treatment program can be

devised.

183. As a current treating doctor stated at the review hearing, the treating team needs

to manage AB in the least restrictive environment, and they hope to discharge

AB sooner rather than later. AB has spent two or three nights at his parents’

home on three weekends, and has been to shopping with his father.

Psychologists have advised on a behaviour plan involving people outside AB’s

52 Transcript of proceedings page 5353 Transcript of proceedings page 54

52

family. AB still has his flat. It will take some time before he can stay there. In

the meantime, he could possibly live with his family. In the doctor’s opinion,

the current plan is effective and should be continued, at least until AB is re-

connected with community support systems and can begin to live outside the

hospital and communicate with a range of people outside the family (including

the guardian) who might contribute to his care.54

184. The doctor also noted that the treatment needs to involve the least restrictive

option.55 In other words under the Mental Health Act, the treating team has a

duty to try to manage AB safely in the least restrictive environment. NDIS

support might be one of the tools to give him an opportunity to have the least

restrictive environment (for example, living in his own flat).56

185. We are satisfied that a timely application for NDIS support should be made on

behalf of AB.

186. In relation to the apparent change in the family’s attitude to the NDIS, we note

that, at the review hearing, AC said that he had no objection to AB’s guardian

having power to apply for NDIS support. Indeed he said “if you ask me if I

support [that power], 100 per cent.”57As a guardian, he would want that power.58

He said “I’m not against NDIS. As I said, 100 per cent for it.”59 AC would

support an application for NDIS support,60 and he would be the first to sign for

it in front of the President of the Tribunal.61

187. Third, there can be no doubt that there is longstanding and debilitating conflict

between AC (and other members of AB’s family) and current members of the

treating team. It appears, in part at least, that the conflict precipitated AC’s

applications to be appointed guardian and manager. As quoted earlier, his

applications stated that, in the absence of status as guardians, “our involvement

54 Transcript of proceedings page 755 See Mental Health Act 2015 ss 56, 58, 60, 64, 65 56 Transcript of proceedings page 5657 Transcript of proceedings page 23, 2558 Transcript of proceedings page 2559 Transcript of proceedings page 5360 Transcript of proceedings page 5561 Transcript of proceedings page 53

53

is seen by some treating psychiatrists as illegal, unwelcome and a breach of

privacy.”

188. Despite their assertions to the contrary, it is clear from the documents provided

to the review Tribunal by AC that the family’s involvement to date with the

treating team extended well beyond:

(a) observing AB’s reaction to changes to his medication;

(b) reporting their observations to the treating team; and

(c) informing the treating team of AB’s history of medication and which

medications did or did not work for him.

189. The correspondence from AC referred to above leads inevitably to the

conclusion that his expressed desire or aspiration to work with health

professionals will only be satisfied if the treating team is guided by, and largely

complies with, his advice or instructions. The history of their interactions to

date shows that, to some extent, the treating team has not provided all of the

treatment that they considered appropriate because of the interventions of AC

and other members of his family. As a consequence, AB has not received

treatment to the full extent that he would have but for the involvement of his

family. The result might be, as the Sydney doctors suggest, that his under

treatment has impeded and hence delayed his recovery.

190. In summary, we find that AC has a difficult and at times dysfunctional

relationship with members of the treating team. Some of his actions in relation

to the treating team (although presumably well motivated) appear to conflict

with, and are likely to conflict with, and hence operate to the detriment of, AB’s

interests. We are not satisfied that, if he were appointed as AB’s guardian, AC

would follow fully the decision-making principles set out in the GMP Act so far

as they involve consultation with the treatment team as AB’s carer.

Accordingly, we have concluded that, although he satisfies most of the statutory

conditions for appointment as guardian and manager for AB, AC is not at this

time “otherwise suitable” for that appointment.

54

Conclusion and orders

191. For the reasons set out above, the review Tribunal has concluded that:

(a) AB is a person for whom a guardian and manager should be appointed;

(b) the powers granted to the guardian and manager in the current order are

appropriate;

(c) the PTG should remain as the guardian and manager.

192. Consequently, the current order should not be varied or revoked.

193. It is important to note what the conclusion in this case is, and what it is not.

194. The conclusion has been reached, and must be understood, in the context of the

current and preceding circumstances, primarily the nature of the treatment being

received by AB. That treatment is being administered under a PTO. The Chief

Psychiatrist is responsible for the treatment, care or support of AB.62 The Mental

Health Act gives the Chief Psychiatrist (and hence the treating team) broad but

not unlimited powers. The team needs to have sufficient latitude to develop,

revise and administer a program that is tailored to meet AB’s needs and that is

in his best interests. That program can be informed, monitored and commented

on by AB’s family, but the treating team should not be impeded in delivering

treatment, care and support in accordance with their professional opinions,

having regard to AB’s history and changing condition.

195. The conclusion in this case does not, and need not, preclude the appointment of

a member of AB’s family as guardian and/or manager in the future if AB’s

condition improves significantly, his circumstances change, and the role of the

treating team is reduced accordingly in both legal and practical terms. We do

not speculate about whether or when that might occur, or whether a member or

members of AB’s family would necessarily be appointed. Indeed, it might be

that eventually there is no need for AB to have a guardian and/or manager. All

we are saying is that the fact that AC has not satisfied this review Tribunal that

he be appointed as AB’s guardian and manager does not preclude him from

applying successfully in the future in significantly different circumstances.

62 Mental Health Act 2015 section 62(1)

55

196. The conclusion in this case has been reached at a particular time in specific

circumstances. It is appropriate to note that AB’s family are loyal, loving and

supportive of him. Those qualities have been demonstrated for a long time, and

continue to be demonstrated on a daily basis. The conclusion in this case does

not detract from that.

197. Nor does the outcome in this case mean that members of AB’s family are

precluded from providing care and support for him in various ways (e.g. by

visiting him and providing food) or that their views are irrelevant to important

decisions made on his behalf. As noted earlier, the current orders provide that:

(a) the PTG as guardian is to “liaise with the protected person’s family

regarding the protected person’s treatment, care and support;” and

(b) the PTG as manager has powers in relation to AB’s property which the

PTG is to exercise having regard to the views of his family.

198. AC submitted that:

(a) he (or AB’s family) be appointed as guardian and manager for a trial

period of six months to a year “to prove that we are true partner to the

current and future treating team in pursuit of improving [AB’s] quality of

life;” and

(b) if there are no challenges to the appointment, the trial period could be

extended on a yearly basis.

199. For the reasons set out above, we have decided not to take that approach. That

does not preclude the family applying for a review of the orders in the future if

circumstances change significantly or for seeking a different order when the

Tribunal reviews the current orders on its own initiative.

200. We note that, after these reasons for decision were written, but before they were

released, AC sent the Tribunal an email advising that AB has been discharged

from the AMHU and is now under his parents’ care. As stated earlier, these

reasons were prepared on the basis of evidence available to the review Tribunal

at the hearing. The change of circumstances advised by AC is consistent with

the treatment plan noted earlier, but does not affect the decision in this case.

56

201. One further matter remains to be decided. On 17 July 2017, the appeal Tribunal

made the following order:

1. The hearing of the appeal in AA 14/2017 is adjourned to a date to be fixed and is subject to any further order of the Tribunal.

202. Because this review hearing dealt with the substantive issues raised by the

appeal, there is no need for any further hearing in relation to the appeal.

Accordingly, in accordance with order 1 on 17 July 2017, we make a further

order that the appeal in AA 14/2017 is dismissed.

……………………………..President G Neate AM

Delivered for and on behalf of the Tribunal

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HEARING DETAILS

FILE NUMBER: GT 2/2017

PARTIES, APPLICANT: AC

PARTIES, RESPONDENT: Public Trustee and Guardian

TRIBUNAL MEMBERS: President G Neate AM

Member J Greagg

DATES OF HEARING: 7 August 2017

58