Legislation cited: Guardianship and Management of Property Act 1991 ss 7, 18, 70A, Dictionary

Mental Health Act 2015 s 145

1. The Tribunal gives its opinion that the guardians' existing power:

to give any consent required for a medical procedure or other treatment (other than a prescribed medical procedure)

enables the guardians to give, for the protected person, consent required for a medical procedure or other treatment under the Mental Health Act 2015 (other than a prescribed medical procedure, as defined in the Guardianship and Management of Property Act).

1. On 30 October 2018, the Tribunal appointed Renée's[1] parents as her guardians pursuant to section 7 of the Guardianship and Management of Property Act 1991 (the GMP Act). The order stated the decision-making powers that the guardians may exercise. The powers included:
   • (a) ...

(d) to give any consent required for a medical procedure or other treatment (other than a prescribed medical procedure);

(f) to make other personal decisions needed to ensure the protected person's health and welfare needs are met and to protect her from unreasonable risks to her health and welfare;

(g) to do things necessary to give effect to decisions about the matters set out above, including (but not limited to):

1. giving or receiving information; or
2. giving consent to investigations and assessments; or
3. participating in negotiations; or
4. signing documents.

1. By application on behalf of Renée's parents, Ms Janelle Walker in her capacity as the (Acting) Team Manager, Mental Health Service for people with Intellectual Disability (MHS-ID) applied to the Tribunal for an opinion about whether the guardians' power, as stated in paragraph (d), enabled them to give consent for a medical procedure or treatment under the Mental Health Act 2015 (the Mental Health Act). Section 18 of the GMP Act permits the Tribunal to give that opinion. It provides:

• (1) The ACAT may, on application by a guardian or manager, give an opinion or advice about the exercise of functions or powers by the guardian or manager.
  • (2) A guardian or manager who acts in accordance with such an opinion or advice is taken to have acted properly and in accordance with this Act unless, in obtaining the opinion or advice, the guardian or manager acted fraudulently or wilfully misinterpreted or concealed a material fact.

2. Ms Walker applied for the opinion, consequent upon receiving advice from the Public Trustee and Guardian (the PTG) that a power as stated in paragraph (d) of the order appointing Renée's parents does not permit a guardian to give consent to treatment under the Mental Health Act. The PTG gave its advice in relation to a different person for whom the PTG has been appointed as guardian, but the power in the order appointing the PTG is identical to the power given in paragraph (d) of the order appointing Renée's parents. Ms Walker tendered, by way of evidence:
   • (i) a copy of the guardianship order concerning the person for whom the PTG is appointed guardian; and
   • (ii) the advice from the PTG, in response to a request for the PTG to give consent to medical treatment under the Mental Health Act in relation to the persons for whom it is guardian, which states:

PTG currently does not have the authority under [the person's] ACT Civil and Administrative Tribunal order to provide consent for mental health treatment, care or support. ... If consent for treatment is required, then we can always advise ACAT as part of the review process so they can make an additional authority on the new order.

1. The PTG's view gave Ms Walker considerable concern because, she said, she works with approximately 30 private guardians who give consent to medical treatment under the Mental Health Act with reliance only on a power in terms identical to that stated in paragraph (d) of the order appointing Renée's parents as her guardian.
2. Ms Walker also referred me to section 70A of the GMP Act, section 70A(1), (2) and (3) of which state:

70A Restrictions on consent by guardian to mental health treatment, care or support

_(1) A guardian who has power to give for a person a consent required for medical treatment involving treatment, care or support under the Mental Health Act 2015 may consent to that treatment only if the person - _

• (a) does not have decision-making capacity under that Act; and

• (b) does not have an advance consent direction under that Act authorising the treatment; and

• (c) expresses willingness to receive the treatment.

(2) A consent must be in writing.

(3) A consent must be for a stated period, of not longer than 6 months, but can be renewed (and further renewed) for another stated period of not longer than 6 months.

1. With reference to the six-month limitation in section 70A(3), Ms Walker was understandably concerned about the apparent need to have numerous guardianship orders amended, and soon, to include an additional power, in each case, for the appointed guardians to give consent for treatment under the Mental Health Act.
2. The Tribunal listed the matter for hearing on 11 December 2019. A notice of hearing was sent to the PTG, but no one from the office of the PTG attended. This made it difficult to understand why the PTG holds the view that a power as stated in paragraph (d) of the order appointing Renée's parents does not permit a guardian to give consent for treatment under the Mental Health Act. With respect, I disagree. My reasons follow.

1. If the preconditions under section 7(1) of the GMP Act for appointing a guardian are met, sections 7(2) and (3) then prescribe the powers that the Tribunal may empower the guardian to exercise. Those sections state:
   1. Appointment and powers of guardians

(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.

(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));

(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);

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

1. A 'prescribed medical procedure' is defined in the Dictionary to the GMP Act as follows:

(d) a medical procedure concerned with contraception; or

(e) removal of non-regenerative tissue for transplantation to the body of another living person; or

(f) electroconvulsive therapy or psychiatric surgery; or

(g) any other medical or surgical procedure prescribed for this definition.

1. Reading sections 7(2) and (3) together, it is clear that the powers described in section 7(3) are only illustrative of the kinds of powers that a guardian may be empowered to exercise. The order appointing Renée's parents is a case in point. It includes the powers stated in paragraphs (f) and (g), neither of which is described or stated in section 7(3).
2. I acknowledge that if a guardian was appointed with power to give consent required for a medical procedure or treatment in terms that mirrored section 7(3)(e) of the GMP Act, the guardian would not have power to give consent for treatment under the Mental Health Act. An order in those terms would, expressly, exclude treatment under the Mental Health Act. In such a case, an additional power to give consent to treatment under the Mental Health Act would be necessary, (for example, a power of a kind stated in section 7(3)(f)), if a guardian wished or needed to give consent for treatment of that kind.
3. However, the power stated in paragraph (d) of the order appointing Renée's parents as her guardians is not written in terms that reflect section 7(3)(e). The only exclusion from the ambit of medical procedures or other treatment for which they can give consent (on Renée's behalf) is a prescribed medical procedure, as defined.
4. By reference to the exclusion of treatment that involves a prescribed medical procedure, Renée's parents could not give consent for electroconvulsive therapy or psychiatric surgery, each of which is a kind of treatment given under the Mental Health Act,[2] but I see no reason why the power stated in paragraph (d) does not permit Renée's parents to give consent for all and any other kinds of medical procedures or treatments under the Mental Health Act.
5. The power given to Renée's parents, as stated in paragraph (g) of the order, can likewise be used by them, as described, in relation to any matter concerning a medical procedure or other treatment under the Mental Health Act, save for a procedure that is a prescribed medical procedure.
6. Pursuant to section 18(2) of the GMP Act, by acting in accordance with this opinion, Renée's parents will be taken to be acting in accordance with the GMP Act.

[1] Renée is not her real name. I have used a pseudonym to preserve her privacy and the privacy of others.

[2] See Mental Health Act 2015 section 145