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[2006] VSC 409
Supreme Court of Victoria
2006-11-10
BYRNE J
Original judgment source is linked above.
GUARDIANSHIP - habeas corpus - whether person lawfully detained in nursing home.
Ms Dixon, from the Office of the Public Advocate, appeared on 2 August 2006
1 On 26 July 2006, sitting in the Practice Court, I ordered that a writ of habeas corpus issue directing that the first defendant, Retirement Care Australia (Preston) Pty Ltd, bring Anastasia Skyllas before the Judge in the Practice Court on 2 August 2006.
2 On 2 August 2006, sitting in the Practice Court, I accepted that the writ had been complied with notwithstanding that Mrs Skyllas was not in person before the Court. I simply ordered that there be no order as to costs.
3 By letter dated 21 August 2006, the plaintiff, John Skyllas, requested that I give reasons for these orders. These are my reasons.
4 Mrs Skyllas, the mother of Mr J Skyllas, was born on 12 March 1927. For many years she had lived with her son at 20 Amsterdam Street, Richmond until 24 September 2004. It seems that Mr J Skyllas and his brother Constantine Skyllas had, by then, fallen out with respect to the care of their mother.
5 On 4 February 2004, upon the application of Mr J Skyllas, VCAT ordered that the Public Advocate be appointed to be limited guardian of Mrs Skyllas with power to make decisions regarding her accommodation. By further order made on 10 August 2004, VCAT reassessed Mrs Skyllas and appointed the second defendant, State Trustees Limited, to be her administrator. On 24 September 2004, Mrs Skyllas was taken to St Vincent's Hospital for treatment for her diabetes. Between that date and 27 January 2006, she resided at various nursing homes under the direction of State Trustees. Meantime, on 11 November 2004, VCAT ordered that the limited guardianship order be enlarged to a plenary guardianship order.
6 On 3 January 2006, VCAT revoked the plenary guardianship order but Mrs Skyllas continued to live in nursing homes and, in February 2006, she was admitted to the Preston and District Nursing Home which is conducted by the firstnamed defendant, Retirement Care Australia (Preston) Pty Ltd. She is still a resident of the Preston nursing home.
7 In his affidavit sworn 12 July 2006, Mr J Skyllas said he believed his mother was detained in the Preston nursing home against her wishes. He maintained that the State Trustees no longer had jurisdiction over her and he wished that she return to live under his care in Richmond.
8 The affidavit of Rehka Chakrabarti, the Director of Nursing at the Preston nursing home, sworn 24 July 2006, described Mrs Skyllas as a high level care patient with a number of physical and medical issues. She confirmed that Mrs Skyllas had expressed a wish to return home but was of opinion that this was not practicable having regard to her condition.
9 As a matter of law the nursing home cannot detain a patient against her wishes and the first defendant did not contend otherwise. This situation assumes that the patient is able to express her wishes and that she has control of her affairs and decision-making processes. Accordingly, on 26 July 2006, I ordered that a writ of habeas corpus issue returnable on 2 August 2006.
10 When the matter returned before me on that day it appeared that VCAT had on 1 August 2006, appointed the Public Advocate to be plenary guardian of Mrs Skyllas. A representative of the Public Advocate attended Court in response to the writ and I accepted this as sufficient response to the writ, given the health of Mrs Skyllas.
11 Since the writ had been complied with, no further order was required. The responsibility for the care of Mrs Skyllas then rested with the decision of her guardian so long as the guardianship order should remain on foot.
Skyllas
Retirement Care Australia