AB - [2008] WASAT 25 | CaseChat AU

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: AB [2008] WASAT 25

MEMBER: MS F CHILD (MEMBER)

HEARD: 5 NOVEMBER 2007

DELIVERED : 6 FEBRUARY 2008

FILE NO/S: GAA 1819 of 2007

BETWEEN: AB
Represented Person

Catchwords:

Guardianship application - Capacity - Need for an order - Represented person with progressive neurological disorder - Family members not involved in care or in decisionmaking - Need for guardian with authority to consent to treatment and services, to decide where the represented person is to live and travel

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 43(1), s 97(1)(c)
State Administrative Tribunal Act 2004 (WA), s 78(1)

Result:

The Public Advocate appointed limited guardian with functions to consent to treatment and services, to decide where the represented person is to live and travel

Category: B

Representation:

Counsel:

Represented Person : Selfrepresented

Solicitors:

Represented Person : Self-represented

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

On an application by a social worker from an Adult Mental Health Centre, the State Administrative Tribunal appointed the Public Advocate as limited guardian for a woman with a diagnosis of Huntington's Disease, a progressive neuro‑degenerative disorder.
The women was a resident in a psychiatric hostel and in a relationship with another hostel resident. In letters received from the woman and her partner they proposed to leave the hostel and live in a flat which the woman owned in the metropolitan area. The partner proposed that they receive assistance of a weekly cleaner and said they would have family support. They also proposed to travel to visit the family of the partner in the Eastern States and possibly settle there if the partner obtained employment.
The professional evidence reported that the woman experiences significant and increasing personal care difficulties due her medical condition and lacks insight into her escalating health care needs.
The Tribunal determined that because the woman's capacity to decide personal matters for herself was impaired and because her condition might place her safety at risk that it was in the woman's best interests that decisions about her health care, her place of living and proposed travel be made by a guardian.
As there was no one else proposing their appointment, the Public Advocate was appointed with authority to consent to medical treatment and services, to decide where the woman was to live and whether she was to travel within or outside Western Australia.

Background

These reasons relate to the decision of the Tribunal to appoint the Public Advocate as guardian of AB (represented person) and are produced pursuant to s 78(1) of the State Administrative Tribunal Act 2004 (WA) at the request of the represented person.
The represented person is a 64 year‑old‑woman who is a resident of a psychiatric hostel. Reports before the Tribunal note that she has a history of treatment for chronic schizophrenia and early dementia. More recently, she was diagnosed with Huntington's Disease. It is reported that she was an only child and both her parents are deceased. Her family of origin are an aunt, an uncle and two cousins. She has some contact with the cousins.
A report of the Public Advocate before the Tribunal notes that the Public Trustee acts as the donee of an enduring power of attorney executed by the represented person and now exercises full authority under the power as the medical evidence is that the represented person has lost capacity to make reasonable decisions about her financial affairs.

The application

The applicant for the appointment of a guardian is a social worker with the hostel team at an Adult Mental Health Centre. Her application notes that she was approached by hostel staff with concerns for the represented person's welfare and made the application after discussions with the staff and management of the hostel, the represented person's relatives and the trust officer of the Public Trustee.
The application was referred by the Tribunal to the Public Advocate for investigation under s 97(1)(c) of the Guardianship and Administration Act 1990 (WA) (GA Act). By that referral, the Public Advocate is asked to investigate and report to the Tribunal on any matter referred. The Public Advocate's statutory functions also include advancing the best interests of the represented person at the hearing before the Tribunal.
The report of the representative of the Public Advocate (Public Advocate) before the Tribunal notes that prior to the hearing he met with the represented person at the hostel where she lives, contacted the represented person's partner, hostel facility manager, the applicant, the cousin of the represented person and the Public Trust officer involved in the management of her estate.

Hearing

The hearing was attended by the represented person, the applicant social worker, the cousin of the represented person and representatives of the Public Advocate. The cousin stated that his parents are supportive of the represented person but are elderly and unable to be involved in the hearing process because of their own poor health, advanced age and frailty. Although notice had been given to the partner of the represented person, as an interested party, he did not attend the hearing.

Relevant legislation and principles to be observed

To appoint a guardian, the Tribunal must be satisfied that a person for whom the application is made meets the requirements of s 43(1) of the GA Act.
"(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40 ‑
(a)has attained the age of 18 years;
(b)is ‑
(i)incapable of looking after her own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to her person; or
(iii)in need of oversight, care or control in the interests of her own health and safety or for the protection of others;
and
(c)is in need of a guardian,
the Tribunal may by order declare the person to be in need of a guardian, and if it does so shall appoint ‑
(d)a person to be a plenary guardian or a limited guardian and, if it is expedient, a person to be an alternate guardian; or
(e)persons to be joint plenary guardians or joint limited guardians,
as the case may require, of the person in respect of whom the application is made."
The principles to be observed by the Tribunal when dealing with applications made under the GA Act are set out in s 4.
They are firstly, that the best interests of the represented person must be of primary concern. Secondly, every person is presumed to be capable of looking after her own health and safety, of making reasonable judgments in matters relating to her person, of managing her own affairs and of making reasonable judgments in respect of matters relating to her estate. Thirdly, a guardian or an administrator shall not be appointed if the needs of the person concerned could be met by means which are less restrictive of their personal freedom of decision and action. Fourthly, a plenary guardian shall not be appointed if the appointment of a limited guardian would be sufficient, in the opinion of the Tribunal, to meet the needs of the person concerned. Fifthly, an order appointing a limited guardian or administrator shall be on terms that in the opinion of the Tribunal imposed the least restrictions possible in the circumstances on the person's freedom of decision and action. Finally, the Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned.

Capacity and need - evidence before the Tribunal

Medical reports before the Tribunal were received both prior to and during the hearing; two reports being submitted by the represented person at the hearing.
The reports of the neurologist, Dr P, dated 15 August 2007 and 26 September 2007, refer to a diagnosis of Huntington's disease. In the report dated 26 September 2007, he states that he has treated the represented person for one year and first recognised her progressive impairment on 15 November 2006. He notes that "[Huntington's disease] is a progressive neuro-degenerative disorder leading to dementia, [and] ataxia. He states that the represented person is unable to make decisions in relation to her personal health care, living situation and financial affairs. He notes "[she] does not have testamentary capacity" and that she has dementia and attending the hearing "may distress her".
In the report dated 15 August 2007, which is addressed to the care manager at the hostel in which the represented person lives, Dr P notes that "Huntington's disease is a dementing illness and can affect the patient's ability to make decisions. The [represented person] unfortunately does not have insight".
Reports submitted by the represented person during the hearing include a report from Dr GK, a general practitioner, dated 1 November 2007 which notes "the above named is fit to live independently: she manages her own shopping: dresses herself as well as washes herself. She has family support nearby". A report, dated 31 July 2007, from Dr AH of the same practice notes that "the above named is fit to live independently: she manages her own shopping: dresses herself as well as washes herself. She has family support nearby". A report dated 5 June 2007 regarding the partner of the represented person from a Dr FF of the same practice, notes "I am writing to confirm that the above named is perfectly capable of deciding affairs for himself". A further report from Dr GK, apparently dated 1 November 2007, states that "Following perusal of a letter from Dr P [the neurologist], it is self‑evident that [the represented person] is lacking in insight and is not able to make decisions for herself".
In addition to the medical reports before the Tribunal, the Tribunal also received reports from the Public Advocate, the Aged Care Assessment Team (ACAT) and the facility manager. The ACAT report notes that represented person has a diagnosis of Huntington's disease and chronic schizophrenia is noted as another health condition. It reports she experiences short‑term memory problems, occasional "at risk" and aggressive behaviours, disturbed sleep, confusion and disorientation. The report notes that there is some conflict between care staff and the represented person's partner, and notes that the represented person "is normally easy to care for [and] get along with but can become verbally aggressive when with her partner/defending him". The report notes that represented person is dependent for shopping and preparing meals, and that "have noticed that [the represented person] is choking on food. Requires speech therapy assessment". It notes assistance with prompting and support with personal hygiene is required and that medication is supervised and administered by hostel staff. The report notes that the represented person is "in a relationship with another hostel resident and is vulnerable to being taken advantage of". It states that "the family are hoping to have the [represented person] transferred to a Huntington's disease specific hostel where she can receive more support". The report notes that the represented person is assessed for low care dementia specific residential care.
In the report from the facility manager, the diagnosis of Huntington's disease is also noted as is a history of chronic schizophrenia and early dementia. It is noted that the represented person entered the facility from home, her regular general practitioner is Dr S and that she has a treating psychologist. The report notes "increasing confusion". The report goes on to say [the represented person] "can follow simple and basic instructions. If unsupervised on outings would not be able to find her way. Not always appropriate with responses and can be incongruent. Enjoys family visits and outings". Further, the represented person "[s]hows lack of insight and [is] unable to plan" and "[the represented person] cannot manage her own care on a day‑to‑day basis regarding basic showering and grooming" and that due to the represented person's "cognitive decline, she is unable to make any decisions regarding her future care".
The cousin of the represented person who attended the hearing, considers that independent professional and expert assistance is required for the represented person in relation to health care decision‑making and in relation to where she should live. He said family members cannot contribute in this regard. His parents, both elderly with significant health problems of their own, did not consider it appropriate that they be involved in decision‑making and could not, because of their own health problems, assist with practical support. The key issue, in his view, is that accommodation provided for the represented person meet her needs. He considers that Brightwater may be more appropriate than the current accommodation because of the represented person's diagnosis.
The partner of the represented person wrote letters to the Tribunal stating that they had shared accommodation at the hostel for some months and that they intend to marry. He proposes that they move to the represented person's unit in Perth and that they travel interstate to visit his family. If he is able to obtain work in his former profession he states they may settle there.
The Public Advocate reports that prior to her admission to the hostel the represented person lived independently in her own unit and that the Public Trustee is now acting as the represented person's attorney under the provisions of an enduring power of attorney.
The report refers to concerns expressed by hostel staff that the represented person is unable to take care of her basic personal needs and is unable to live independently because she is unable to manage her personal hygiene, has almost no control over her arm movements, and has particular problems with swallowing and is in danger of choking on food.
The report notes that the represented person's partner, Mr GH, is also a resident of the hostel and shares a room with the represented person. The Public Advocate's report notes that the couple have a strong bond.
The Public Advocate reports that the facility manager advises that represented person's stated wish is to move back into her unit with her partner. Hostel staff expressed concern to the Public Advocate should the represented person leave the hostel accommodation because in their view she is unable to live independently because of the level of care she requires. The report notes that the facility manager considers that the represented person would soon need to move from the hostel to a facility that would provide 24‑hour care.
In support of the need for a guardianship order, the report of the Public Advocate notes that the represented person is physically unable to leave the facility herself without assistance but that someone could assist her to do so.
The report notes that the represented person's cousins do not want to be involved in making decisions for the represented person and ask that health care and other decisions be made by an independent person.

Reasons of the Tribunal

There is a conflict in the professional evidence about the capacity of the represented person to care for herself. Although the reports of Dr GK and Dr AT state that the represented person is able to live independently, this evidence is in conflict with the other reports. In assessing their evidence, it is noted that neither doctor is the represented person's regular medical practitioner and the reports do not refer to her medical conditions. Dr GK appears to amend his report, having reviewed the report of Dr P, who is a recognised expert in the condition from which the represented person suffers.
The Tribunal does not place any weight on the reports of Dr GK and Dr AT in relation to the question of the capacity of the represented person to act on her own behalf in matters relating to her person.
The evidence of Dr P, together with the facility manager's report, is preferred as both these health professionals have had longer contact with the represented person and are familiar with her medical conditions and her circumstances. Their evidence is that the represented person is dependent for many of her activities of daily living. Dr P states that she has no insight into her condition. This evidence is accepted and it is the lack of insight into the effects of her illness which potentially places the represented person at risk because she requires care and supervision of her medication, her personal hygiene and of her eating because of the risk of choking but does not understand this to be the case. Although the professional reports state that she needs an increasing level of care in the context of her degenerative condition, the proposal that she leave the hostel and live in her unit with some supports may result in a reduced level of care and supervision. It is true that services can be arranged to provide care for persons with disability at home. The proposal by the represented person's partner that she live in her unit with him, and that a cleaner and shopping assistance be arranged, is before the Tribunal. As the partner did not attend the hearing and the represented person has a significant communication disability this proposal could not be explored in further detail.
The partner states in his submissions that family support is available should the represented person move back to her unit. The evidence of the represented person's cousin is that although concerned for her welfare, the family cannot provide any practical support to the represented person.
The submissions of the partner do not refer to the care needs of the represented person. He notes in one submission that "there is no reason why we can't get on with our life together over east". A submission written on behalf of the represented person by her partner refers to the couple going to "Fremantle unassisted several times weekly" and notes, "and I feel between us we will manage quite well". The applicant raises a doubt about the partner's ability to care for both the represented person and himself. Again, this was not able to be explored in the absence of the partner.
Based on the reports of the neurologist and the facility manager and the ACAT report, the Tribunal is satisfied that the represented person is a person for whom a guardianship order may be made in that three criteria in s 43(1)(b) are satisfied.
The evidence, which the Tribunal accepts, is that the represented person does not understand her condition and her own care needs, and so cannot make a judgment about whether those needs would be met sufficiently to ensure her safety and welfare if she left the hostel and lived with her partner. Because of her diagnosed condition she is incapable of looking after her own health and safety. Her lack of insight means that she has lost the capacity to make reasonable judgments in relation to her person and because of the nature of her disability, she is in need of oversight care and control in the interests of her own health and safety, in particular, in relation to the need to monitor her eating and swallowing to ensure that she does not choke.
In respect for the need of a guardian, the applicant's position is that the decline in the decision‑making capacity of the represented person combined with requests by her to live independently with her partner show that she does not have insight into her escalating health care needs. The applicant states that ability of the partner, who is also a resident at the facility, to care for himself and provide the appropriate level of care for the represented person is challenged by the facility staff.

She submits that there needs to be consideration of the health consequences to the represented person of a decision to live independently with her partner. She states that there is a need to balance the wishes of the represented person and her quality of life with her need for care in view of her prognosis.
Because of the diagnosis of the represented person and her lack of insight into her condition, she does need someone to act of her behalf in respect of decisions regarding her person.
The particular issues identified in the material and in the hearing before the Tribunal include: where the represented person should live, future decisions about her health care and medical consent to that treatment and health care, and whether supervision of her condition will be adequate if she travels as proposed with her partner.
Because of the stated inability of family members to be involved in the decision‑making regarding her health care, there is no alternative to the appointment of a guardian to give consent to medical treatment.
Because the expressed wish of the represented person is to leave the hostel and to live with her partner, and because of the finding of the Tribunal that she lacks capacity to make this decision in her best interests and may be at risk to her health and safety should she do so, there is a need for legal authority to make the decision on her behalf. This is also the case in relation to the decision to travel.
Her partner's wishes are clear from his correspondence to the Tribunal, but it does not appear that in expressing those wishes that he has taken full account of the represented person's disabilities and her need for care.
Although her bond with her partner is acknowledged, because the represented person is not able herself to leave her current accommodation, but could do so with the assistance of another person, the guardian needs legal authority to make decisions on behalf of the represented person to decide whether she should leave her current accommodation and live independently or to travel.
The represented person is in need of a guardian and because of her circumstances there is no less restrictive means by which her need for a decision‑maker for personal decisions as outlined above can be met.

The wishes of the represented person

As noted above, the principles to be observed by the Tribunal in s 4 require the best interests of the represented person to be the primary concern of the Tribunal and direct the Tribunal to ascertain the wishes of the represented person.
Although asked during the hearing, the wishes of the represented person are not able to be ascertained in that setting because of her communication disability. The represented person describes herself as unable to talk properly. As noted above, written documents prepared by her partner on her behalf provide information about the wish of the represented person to leave the hostel and live with her partner. The Public Advocate report notes that the represented person does not wish to have a guardian and reports that she believes she is able to make her own decisions as to where she should live.
Because the primary obligation of the Tribunal is to act in the best interests of the represented person, it is not always possible to act consistently with the expressed wishes of the represented person - the limitation is when those wishes come into conflict with her best interests.
Although living in her own home is the wish of the represented person and a less restrictive environment, the professional evidence is that such an arrangement may not meet her care needs, putting her health and safety at risk. The applicant indicates the difficulties associated with balancing the rights of the represented person and her wishes and the demands of care required by her progressive illness. Although her bond with her partner is acknowledged, the Tribunal considers it is in the best interests because of her lack of capacity, her vulnerability and lack of involved family support that a guardian make decisions for her regarding her accommodation, her care needs and her travel plans.

Appropriate appointment

As no one else proposes their appointment, there is no alternative to the appointment of the Public Advocate as guardian of the represented person.
The Public Advocate submits that because of the progressive nature of her condition, a five year order should be made. As the represented person will not recover her capacity because of her illness, it is likely that she will need a guardian for her lifetime. The maximum period of an order is five years and is appropriate in these circumstances.

Order

The Tribunal made the following orders:
1.The Public Advocate is appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to consent to any treatment or health care of the represented person;
(d)to determine the services to which the represented person should have access; and
(e)to determine whether the represented person should travel within or outside Western Australia and the circumstances of that travel.
2.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
3.This order is to be reviewed in five years.

I certify that this and the preceding [52] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER