Guardianship and Administration (Tribunal Proceedings) Amendment Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (15:44): Obtained leave and introduced a bill for an act to amend the Guardianship and Administration Act 1993.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (15:44): I move:

That this bill be now read a second time.

Today, I introduce the Guardianship and Administration (Tribunal Proceedings) Amendment Bill 2025. This bill will amend the Guardianship and Administration Act 1993 to make changes to procedures and reviews by the South Australian Civil and Administrative Tribunal (SACAT) to help facilitate timely discharge from hospital of patients with impaired decision-making capacity. When patients no longer require hospital care but are kept in a hospital bed waiting discharge to an appropriate place such as an aged-care facility, that extra time they are unnecessarily kept in hospital is not good for the patient and it is not good for the hospital. That is at core the issue this bill seeks to help address.

When a hospital patient lacks capacity to make the decisions required to enable their discharge from a hospital—for example, because they suffer from dementia—another appointed person is needed to make these decisions on the patient's behalf. This could be as a substitute decision-maker under an advance care directive made previously by the patient. Where the patient has not made an advance care directive, it is likely that a guardian or administrator would need to be appointed by SACAT under the Guardianship and Administration Act.

The Guardianship and Administration Act and the principles of procedural fairness applicable to SACAT require that medical evidence is gathered about the patient's decision-making capacity, and then information from family or other persons who know the patient well is understood by SACAT, before a decision is made to appoint a guardian or administrator. Protracted stays in hospital while waiting these appointments and for discharge decisions to be made are not ideal, as previously mentioned, both in terms of the negative impacts on the wellbeing of the patient and in terms of the effects on the hospital itself.

It is accepted that extended stays in hospital awaiting decisions about moving into aged or community care settings are detrimental to the health and wellbeing of patients. Of course, the ability to make timely discharge decisions is only one part of a larger puzzle. Limited availability of commonwealth-funded aged-care places into which these patients can be discharged is also a factor; however, the government is determined to pursue measures within our powers in relation to this problem.

In relation to measures that are contained in the bill, one measure in the bill is that it makes legislative changes to enable SACAT to deal more quickly with applications to appoint a guardian or administrator for a hospital patient. The bill would amend the Guardianship and Administration Act to authorise SACAT to prioritise these hospital applications over other non-urgent applications where necessary. SACAT will be required to deal with guardianship and administration appointments with respect to hospital patients within 14 days of a complete application, which is accompanied by all required supporting information.

For an application where a person may be at risk of imminent personal or financial harm, the Guardianship and Administration Act already provides for urgent without notice SACAT hearings. Hospital patients, however, are often safe and cared for in hospital, so urgent interim orders do not ordinarily apply to that cohort. For hospital and other non-urgent guardianship and administration applications, SACAT's past listing timeframes compared favourably with interstate equivalent tribunals. The new 14-day proposed requirement for hospital applications, coupled with additional funding for SACAT, will facilitate timely hearings for hospital applications even during unusually busy periods.

The bill also proposes to make provision for expedited hearings of hospital applications, (including in less than 14 days) in appropriate circumstances, by allowing SACAT to dispense with the requirement to notify all interested persons or to shorten the usual notification period in appropriate circumstances.

Examples of what could constitute appropriate circumstances is set out in the bill. These include:

where discharge is proposed to be back to the patient's home, to reside with the guardian or into short-term respite care;

where the application is for the appointment of the Public Advocate or Public Trustee and no other suitable appointee has been identified by the hospital after satisfying SACAT of reasonable inquiries, or;

where the hospital has identified a willing and able available relative or supporter of the patient for appointment as guardian and/or administrator, but not identified any other interested persons to be notified after satisfying SACAT of reasonable inquiries.

To address any potential risks that may arise from these expedited proceedings, the bill amends the provisions in the Guardianship and Administration Act that currently allow SACAT to revoke a guardianship order or administration order at any time. These amendments will allow an interested person who is not notified of an expedited proceeding to make an application to vary or revoke an order without needing to satisfy SACAT of a change of circumstances.

Finally, the bill would amend the review provisions of the Guardianship and Administration Act to allow more flexibility in the setting of mandatory review periods of SACAT orders. The maximum review periods for special orders will increase from six months to a maximum of 12 months for the first review and from 12 months to a maximum of three years for subsequent reviews. The maximum review period for other SACAT orders under the act will increase from three to five years. It should be noted that SACAT will still have the discretion to fix a shorter period in either case, where it is considered necessary or desirable.

These proposed changes to review periods would increase SACAT's capacity to deal with applications for orders under the act and streamline imposts on parties arising from frequent mandatory reviews of SACAT orders in circumstances where it is uncommon for the orders to be changed on review.

The measures in this bill are supported by the government providing additional funding to SACAT, with funding of $3.8 million over two years and $1.7 million per annum indexed from 2027-28 being provided to SACAT as part of the 2025-26 budget to support SACAT in achieving the objectives in this bill. There is also increased funding within SA Health to support the transition of people with complex needs into aged-care services. I commend the bill to members and seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Guardianship and Administration Act 1993

3—Amendment of section 33—Applications under this Division

This clause amends section 33(1a) to provide that the qualifications in that section apply except where an application relates to an order that was made at proceedings expedited pursuant to section 65A and the applicant was not given notice of those proceedings by the Tribunal.

4—Amendment of section 37—Applications under this Division

This clause amends section 37 to provide that subsection (1a) does not apply in circumstances where an application relates to an order that was made at proceedings expedited pursuant to section 65A and the applicant was not given notice of those proceedings by the Tribunal.

5—Amendment of section 57—Review of Tribunal's orders

This clause amends section 57 in relation to the times within which the Tribunal must review the circumstances of a protected person as follows:

in the case of a protected person who is being detained in any place pursuant to an order of the Tribunal—the time for review of the protected person is proposed to be—

within 1 year of the making of the order or such earlier time as may be specified by the Tribunal in the order; and

thereafter at intervals of not more than 3 years or such shorter intervals as may be specified by the Tribunal in the order; and

in any other case—at intervals of not more than 5 years or such shorter intervals as may be specified by the Tribunal in the order.

6—Insertion of section 65A

This clause inserts proposed new section 65A which provides that if an application for a guardianship order, an administration order or an order under section 32 (or a variation of any such order) is made in relation to a person who is an inpatient of an incorporated hospital, the Tribunal must hear the application as a matter of priority (but in any event within 14 days of the application being made and the completion of all preliminary obligations imposed in relation to the application under the Guardianship and Administration Act 1993 or the South Australian Civil and Administrative Tribunal Act 2013).

7—Amendment of section 66—Tribunal must give notice of proceedings

This clause amends section 66 to provide that in relation to proceedings on an application to which proposed new section 65A(1) applies, the Tribunal is not obliged to give notice of the proceedings to a person referred to in section 66(1)(d) and may shorten the time for giving notice of the proceedings to any person referred to in section 66(1) if satisfied that appropriate circumstances exist in the particular case.

For the purpose of determining if appropriate circumstances exist in the circumstances of a case, it is proposed that—

appropriate circumstances in which the Tribunal may dispense with giving notice to a person referred to in section 66(1)(d) or shorten the time for giving such notice include (without limitation)—

where the application is for the appointment of a guardian or administrator for a person and it is proposed that the person is to be discharged from the hospital to reside—

in their own home; or

with the person who is proposed as the guardian or administrator (as the case requires); or

in a short-term funded aged care service or a Transition Care Program (both within the meaning of the Aged Care Act 2024 of the Commonwealth); or

in prescribed circumstances; and

where the application is for the appointment of the Public Advocate as guardian for the person and no other suitable person has been identified as a proposed guardian following reasonable enquiries by the applicant or other person as set out in the application; and

where the application is for the appointment of the Public Trustee as administrator for the person and no other suitable person has been identified as a proposed administrator following reasonable enquiries by the applicant or other person as set out in the application; and

where the application is for the appointment of a guardian or administrator for the person and no other person having a proper interest in the matter has been identified following reasonable enquiries by the applicant or other person as set out in the application; and

appropriate circumstances in which the Tribunal may shorten the time for giving notice to a person referred to in section 66(1) (other than subsection (1)(d)) include (without limitation) circumstances where the application is for the appointment of a guardian or administrator for a person and it is proposed that the person is to be discharged from the hospital to reside—

in their own home; or

with the person who is proposed as the guardian or administrator (as the case requires); or

in a short-term funded aged care service or a Transition Care Program (both within the meaning of the Aged Care Act 2024 of the Commonwealth); or

in prescribed circumstances.

Debate adjourned on motion of Hon. S.L. Game.