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; b. To make decisions, take action and give any necessary consent concerning the provision of appropriate medical and dental services for the plaintiff; c. To make decisions, take action and give any necessary consent for the provision of other appropriate services for the plaintiff; d. To make decisions, take action and give any necessary consent to appropriate major medical or dental treatment for the plaintiff; e. To investigate to the extent necessary the availability of accommodation and services appropriate for the plaintiff; f. To sign on behalf of the plaintiff and do all such things as are necessary to give effect to any of the above functions." 8 The application is made pursuant to the inherent guardianship jurisdiction of the Supreme Court, which is preserved by s 8(1) Guardianship Act 1987 (NSW). The application is made to the Court rather than to the Guardianship Tribunal because the need for it has arisen in the course of the hearing before this Court, and it is far more convenient and expedient for this Court to deal with it rather than for a fresh application to be made to the Tribunal. 9 For these reasons, I consider it appropriate to grant leave to file the Summons in Court. Because the Plaintiff himself is of very limited means, I consider it appropriate to dispense with payment of the filing fee. 10 In the course of the hearing so far, I have seen and heard the Plaintiff expressing his views. I have heard the evidence of the Hospital staff who have been looking after him, and of his treating psychiatrist. I have no doubt whatsoever that his mental illness is such that he is in need of a legal guardian in order to make proper enquiries and arrangements as to what suitable accommodation and care may be available for him outside the Hospital. 11 The Summons seeks to appoint the Public Guardian as the Plaintiff's guardian. 12 The office of Public Guardian is created by s 77(1) of the Guardianship Act. Subsection (2) provides that the Protective Commissioner shall be the Public Guardian. 13 The office of Protective Commissioner is created by s 5(1) of the Protected Estates Act 1983 (NSW). That Act has been repealed by the NSW Trustee and Guardian Act 2009 (NSW), but s 77 of the Guardianship Act has not been repealed. By Schedule 1, clause 3(1)(d) of the NSW Trustee and Guardian Act, a reference in the Guardianship Act to the Protective Commissioner is to be read as a reference to the NSW Trustee. 14 Accordingly, I will appoint the NSW Trustee as the Plaintiff's guardian. Section 16(1) Guardianship Act requires that a guardianship order specify whether it is continuing or temporary and whether plenary or limited. Because the appointment of a guardian is necessary only for a very limited purpose at this stage of this case, I will order that the NSW Trustee's functions as guardian be limited, until further order, to investigation to the extent necessary the availability of accommodation and services appropriate to the Plaintiff's care. The guardianship will be limited, in the first instance, to twelve months from the date of these orders. 15 These orders may need re-visiting in the course of the further hearing of the Plaintiff's main application. Orders 16 i) Grant leave to file in Court a Summons in the form initialled by me and placed with the papers. ii) Waive payment of the filing fee for the Summons. iii) Appoint as the Plaintiff's guardian for a period of one year from today the NSW Trustee, whose function as guardian shall be limited, until further order of the Court, to making enquiries to the extent necessary as to the availability of accommodation and services appropriate to the Plaintiff's care. iv) Liberty to apply. – oOo – DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.