BC, Re [2009] NSWSC 835

New South Wales Supreme Court

CITATION : BC, Re [2009] NSWSC 835

HEARING DATE(S) : In Chambers

JUDGMENT DATE : 19 August 2009

JURISDICTION : Equity Division Protective List

JUDGMENT OF : Palmer J

DECISION : Guardian appointed with limited function.

CATCHWORDS : PROTECTED PERSONS – GUARDIANSHIP – Whether appropriate to appoint guardian for mentally ill patient seeking discharge from involuntary hospitalisation for limited purposes of making enquiries as to alternative external care.

- Guardianship Act 1987 (NSW) – s 8(1), s 77(1) LEGISLATION CITED : - Mental Health Act 2007 (NSW) – s 163(1) - NSW Trustee and Guardian Act 2009 (NSW) - Schedule 1, clause 3(1)(d) - Protected Estates Act 1983 (NSW) – s 5(1)

CATEGORY : Separate question

BC by his Tutor (Plaintiff) PARTIES : Mental Health Review Tribunal (First Defendant) Northern Sydney Central Coast Area Health Service (Second Defendant)

FILE NUMBER(S) : SC P61/07

COUNSEL : Ms S. Norton SC, Ms M. Fraser (Plaintiff)

SOLICITORS : Friend & Co (Plaintiff)

PALMER J.

P61/07 Re "BC"

JUDGMENT

19 August, 2009

1 The Plaintiff by his Tutor has commenced proceedings under s 163(1) of the Mental Health Act 2007 (NSW) by way of an appeal from decisions of the Mental Health Review Tribunal made on 26 July 2007 and 14 February 2008. By those decisions the Tribunal declined to order the discharge of the Plaintiff as an involuntary patient at Macquarie Hospital. 2 There is no issue that, for many years, the Plaintiff has been suffering from paranoid schizophrenia. His condition is stabilised and controlled by medication. The Plaintiff wishes to be released from the Hospital into the community but he acknowledges that he needs a fairly high degree of care and supervision, particularly with regard to the continuation of his medication, if he is not to fall seriously ill again. 3 The active Defendant in the proceedings, the Hospital itself, opposes the discharge of the Plaintiff from its care. 4 During the course of the hearing before me it emerged that the real issue is whether accommodation with the necessary degree of care and supervision is available for the Plaintiff outside the Hospital or whether, in fact, it can only be provided by the Hospital itself, in which the Plaintiff has been a patient for some twenty years. 5 The Plaintiff himself is not able to make enquiries as to the availability and suitability of external accommodation. As I have noted, the Hospital does not regard him as suitable for external accommodation and is unwilling to provide a discharge plan which would enable external organisations providing care to assess the Plaintiff's suitability. 6 The Plaintiff, through his Tutor, wishes to make enquiries from external organisations directly as to the availability of suitable accommodation and the degree of care and supervision which they provide. With the benefit of that information, the Court can decide, in the light of the views expressed by the Hospital's staff, whether the Hospital should prepare for the Plaintiff's discharge into such accommodation. 7 The Plaintiff's Counsel say, and I accept, that proper enquiries on behalf of the Plaintiff can be made only with the authority of a person who is his legal guardian. For that reason the Plaintiff, again by his Tutor, seeks to file a Summons claiming a declaration that the Plaintiff is a person in need of a guardian and seeking that the Public Guardian be appointed as the Plaintiff's guardian, limited to the following functions: "a. To make decisions, take action and give any necessary consent concerning the provision of appropriate accommodation for the plaintiff;