Guardianship order in relation to a patient who suffers from a mental illness

The Guardianship Division of the New South Wales Civil and Administrative Tribunal (Tribunal) was recently required to consider an application for a guardianship order in relation to a patient who suffers from a mental illness. The application for the order was made by the patient’s case manager from a community mental health service and arose from the patient’s refusal to accept her monthly injection of antipsychotic medication. Her failure to take medication had necessitated police attending her home at which time the patient would ordinarily consent to the injection so as to avoid being taken to a mental health facility. Part of the reason for the application was the belief by the case manager that a guardianship order would provide the requisite authority to override the patient’s objections to treatment enabling the administration of the antipsychotic medication without the need to issue the warning letters required under the Mental Health Act.

The Guardianship Act permits the Tribunal to make a guardianship order in respect of a person if it is satisfied that because of disability the person is totally or partially incapable of managing his or her own person. A person with a disability includes people who are mentally ill within the meaning of the Mental Health Act.

Evidence was led that the patient suffered from a mental illness and was the subject of a community treatment order (CTO) made by the Mental Health Review Tribunal (MHRT) in August 2015. In making the CTO, the MHRT heard that the patient suffered from delusions and had a history of significant risk to herself. The Tribunal in this application was satisfied that the patient was restricted in her ability to make important lifestyle decisions and as a result was at least partially unable to manage her person. Accordingly, it was appropriate for the Tribunal to determine whether it should make a guardianship order in respect of the patient.

The patient did not participate in the hearing and therefore the Tribunal was unable to ascertain her views in relation to whether a guardianship order should be made. The legal representative for the patient however made reference to sections 50 to 67 of the Mental Health Act, which provides a detailed scheme in relation to the making and implementation of CTOs. The legal representative for the patient submitted that the objects of the Mental Health Act and the detailed scheme of making and implementing CTOs as provided for in the legislation, make it clear that that it is the Mental Health Act which is intended to establish how any involuntary mental health treatment should be carried out in the community. Regard was also had to section 3C of the Guardianship Act which provides that a guardianship order is only effective to the extent that the terms of the order are consistent with any determination made under the Mental Health Act.

The patient’s representative submitted that to appoint a guardian with functions aimed at enforcing psychiatric treatment in the community would be inconsistent with the Mental Health Act and therefore will be ineffective due to operation section 3C of the Guardianship Act. The Tribunal accepted that it would be inappropriate to make an order for the purposes of providing a scheme by which a guardian may seek to impose involuntary treatment otherwise ordered under a CTO or provided for under the Mental Health Act. As such, the Tribunal found that an order would be ineffective as result of section 3C of the Guardianship Act.

Whilst the Tribunal refused to make an order which may potentially circumvent the provisions of the Mental Health Act in relation to community treatment for the patient’s mental illness, it recognised that there was a need to make decisions about the patient’s health care and treatment of her physical health and was satisfied that based upon the evidence the patient’s objections to medical treatment arose as a result of her psychiatric condition and lack of insight into her health. The Public Guardian, who was appointed as the patient’s guardian, confirmed that it would not consider itself to be authorised to intervene with respect to the antipsychotic medication prescribed in accordance with the CTO.

Post by Karen Kumar and Cameron Leaver 

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