Who has standing to seek a guardianship order?

  • 14 Feb 2017

The Guardianship Division of the NSW Civil and Administrative Tribunal (the Tribunal) was recently required to consider whether a Local Health District (LHD) had standing to make an application seeking a guardianship order in respect of an in-patient (NEJ [2017] NSWCATGD 1).

The LHD made an application seeking the appointment of a guardian for an in-patient. The LHD formed the view that due to the inability of the patient to safely return home to live alone, a guardian was required to be appointed to enable that person to make decisions about placing the patient in residential care. The patient the subject of the application was reported to have chronic schizophrenia, cognitive decline, and longstanding alcohol abuse.

A primary issue in the application concerned whether the LHD had standing to make the application. The Tribunal accepted that the LHD satisfied Section 9(1)(d) of the Guardianship Act 1987 (NSW) which provides that an application for a guardianship order can be made by “any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person”. It was noted that the word ‘’person’’ includes a body corporate and that a LHD is defined by the Health Services Act to be a body corporate which can take proceedings necessary for, or incidental to, the purpose for which it is constituted which includes the protection and promotion of the health of residents of its area

The Tribunal was satisfied that the statutory functions and purpose of a LHD lead to a conclusion that the LHD had a genuine interest in the patient’s welfare. The Tribunal also found that whilst the LHD has an interest in not keeping people in hospital if they do not require such level of care, that interest is not in conflict with the genuine concern regarding a patient’s welfare on discharge from hospital.

The decision is consistent with the Ministry of Health’s policy entitled System Relationships and Frameworks, The Guardianship Application Process for Adult Inpatients of NSW Health Facilities, (Guideline No GL2016_026, NSW Ministry of Health, 4 November 2016), which recommends that applications to the Guardianship Division of the Tribunal, be made in the name of the LHD or Specialty Network rather than in the name of an individual health practitioner.

Post by Karen Kumar

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