AC and AM
[2013] WASAT 95
•25 OCTOBER 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: AC and AM [2013] WASAT 95
MEMBER: MR M ALLEN (SENIOR MEMBER)
MS F CHILD (MEMBER)
MS S GILLETT (MEMBER)
HEARD: 25 OCTOBER 2012
DELIVERED : 25 OCTOBER 2012
PUBLISHED : 25 JUNE 2013
FILE NO/S: GAA 1569 of 2012
BETWEEN: AC
Applicant
AND
AM
Represented PersonPUBLIC ADVOCATE
Interested Party
Catchwords:
Guardianship and administration Application for declaration that two persons are the persons responsible for the making of future treatment decisions for severely disabled person Consideration of scope of power to declare that a person is the person responsible for making treatment decisions Finding that the power to declare who is the person responsible is limited to treatment decisions for treatment presently proposed for patient, rather than for future treatment Comment that any declaration as to who is the person responsible for making of treatment decision must be restricted to a single person, not two persons
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 110ZD, s 110ZG, s 110ZH, s 110ZI, s 110ZIA, s 110ZJ, s 110ZK, Pt 9D
Result:
Application dismissed
Summary of Tribunal's decision:
The foster parents of a severely disabled man sought a declaration under s 110ZG of the Guardianship and Administration Act 1990 (WA) that they are the 'persons responsible' for the man and therefore able to make treatment decisions for him in relation to any treatment that he may require in the future. There is no advance health directive, enduring power of guardianship or guardianship order in force in respect of the man.
The Tribunal considered the terms of the relevant provisions of the Guardianship and Administration Act 1990 (WA) principally s 110ZD and s 110ZG and concluded that they deal with situations where a decision is to be made in relation to particular treatment that is proposed for a patient at that time. The power to declare who is the person responsible at any point in time is intended to enable the Tribunal to provide clarity as to who is the person responsible in any situation where, for any reason, there is some doubt about who is that person such as a dispute between two or more persons who both claim to be entitled to make the treatment decision.
The person responsible for the making of a treatment decision is to be determined having regard to the facts and circumstances of the patient at that time not by reference to any facts that might apply in future. If it were thought necessary to have certainty regarding who should be able to make treatment decisions for the person in the future, then a guardianship order containing authority to make treatment decisions would be the appropriate mechanism to provide that certainty.
The Tribunal commented that, even in circumstances where a declaration can be made, the declaration could only identify a single person as the person responsible, and cannot identify more than one person.
The Tribunal dismissed the application for a declaration.
Category: A
Representation:
Counsel:
Applicant: Self-represented
Represented Person : N/A
Interested Party : Mr C Bydder
Solicitors:
Applicant: Self-represented
Represented Person : N/A
Interested Party : State Solicitor's Office
Case(s) referred to in decision(s):
Chief Executive Officer, Department for Child Protection and DJC [2011] WASAT 190
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
AM is a 35yearold man. He is blind, has a severe intellectual disability, and suffers from epilepsy and other medical conditions. For most of his childhood he was in the care of the State, living in various placements until 1993 when he started to live with AC and his wife, CC. He has remained with them since and they say he has become a member of their extended family.
Since 2002 AC and CC have been AM's appointed plenary administrators under the Guardianship and Administration Act 1990 (WA) (GA Act) and remain so pursuant to orders made by this Tribunal in May 2012.
In 2004 a guardianship order was made for AM, with the Public Advocate being appointed AM's limited guardian with powers to determine where AM should live, to consent to medical treatment decisions and a number of other functions. The appointment of the Public Advocate was sought by the Disability Services Commission (DSC) who provided services to AM. Following review of the order, the Public Advocate proposed AC and CC for appointment as guardians to consent to treatment on AM's behalf. At that time AC and CC were unwilling to be appointed as guardians because of the policy of the DSC that their appointment as guardians would result in them being treated as 'family members' of AM and, consequently, the payments received by them from DSC for caring for AM would be at risk.
In 2010 the guardianship order was amended by the Tribunal. The Public Advocate ceased to be AM's limited guardian and PN (who is the soninlaw of AC and CC) was appointed as AM's guardian with power to make treatment decisions for him. The same DSC policy remained in place.
The guardianship order was again reviewed by the Tribunal in May 2012, at which time it became apparent that, notwithstanding the appointment of PN as limited guardian in 2010, AC and CC were, in fact, the persons who made treatment decisions on behalf of AM. Because the only decisions that needed to be made on behalf of AM were treatment decisions, it was considered that a guardianship order was no longer required because AC and CC could, in future, make treatment decisions for AM as the 'person responsible' for him under s 110ZD. Further reference will be made to the provisions of that section below. Accordingly, the guardianship order was revoked.
AC and CC had some concern that, because AM had been the subject of a guardianship order for many years, their authority to make future treatment decisions under s 110ZD might be questioned by treatment providers. Accordingly, they applied to the Tribunal for a declaration under s 110ZG, the intent being that such a declaration could be produced and relied upon as evidence of the ongoing authority of AC and CC as the persons responsible for AM and able to make treatment decisions on his behalf as and when such decisions are required.
Section 110ZG, in essence, confers on the Tribunal the power to declare that '… a patient is unable to make reasonable judgments in respect of the treatment proposed to be provided to the patient; and … that the person identified in the declaration is the person responsible for the patient under s 110ZD', and that such a declaration has effect according to its terms and may be revoked by the Tribunal.
The application was listed for hearing on 25 October 2012. AC, CC and the Public Advocate were invited to make submissions on whether, on the proper construction of s 110ZG, a declaration could be made that would identify the person responsible for all future treatment decisions for AM or whether a declaration pursuant to s 110ZG would apply only to a particular, specified treatment.
The Public Advocate lodged submissions prepared by the State Solicitor, and Mr Bydder supplemented those submissions orally at the hearing. We are grateful for that assistance and find ourselves in substantial agreement with the submissions made. AC and CC attended the hearing on that day, but did not make substantive submissions regarding the construction of s 110ZG. Their principal concern was that, if they were to make treatment decisions for AM in future, they were not doing anything that was 'unlawful'. They expressed the view that they did not expect any of AM's regular treatment providers to question their authority as the persons able to make treatment decisions for him.
At the conclusion of the hearing, the Tribunal announced its decision, which was that a declaration under s 110ZG identifying a person as the 'person responsible' for a patient could only relate to treatment that was proposed to be provided to the patient at that time, and that a declaration made under the section could not operate so as to declare the person responsible for future treatment and treatment decisions. Accordingly, the application for a declaration under s 110ZG was dismissed. We said, at the time, that we would publish our reasons for that decision and these are those reasons. We apologise to the parties for the delay in providing these reasons.
Statutory framework
Part 9D of the GA Act deals with the making of treatment decisions for persons who are unable to make those decisions for themselves. Section 110ZI and s 110ZIA deal with decisions made by health professions in urgent situations and are not relevant to this proceeding.
In non-urgent situations, s 110ZJ applies where 'a patient is unable to make reasonable judgments in respect of any treatment proposed to be provided to the patient' and sets out an order of priority for how and by whom treatment decisions are to be made in such circumstances, namely:
•if the patient has made an advance health directive (AHD) containing a treatment decision in respect of the treatment, whether or not the treatment is provided must be decided in accordance with the treatment decision in the AHD: s 110ZJ(2);
•if there is no AHD but the patient has an enduring guardian under an enduring power of guardianship (EPG) who is authorised, reasonably available, and willing to make a treatment decision in respect of the treatment, whether or not the treatment is provided must be decided by the enduring guardian: s 110ZJ(3);
•if there is no AHD or EPG but the patient has a guardian who is authorised, reasonably available, and willing to make a treatment decision in respect of the treatment, whether or not the treatment is provided must be decided by the guardian: s 110ZJ(4); and
•if there is no AHD, EPG or guardian but there is a person responsible under s 110ZD, whether or not the treatment is provided must be decided by the person responsible: s 110ZJ(5).
Health professionals are entitled to rely upon treatment decisions made in accordance with the above provisions: s 110ZK.
The following terms are defined in the Act as follows:
•'patient' means a person who needs treatment (s 110ZH);
•'treatment' means medical or surgical treatment, including a life sustaining measure and palliative care; dental treatment; or other health care (s 3); and
•'treatment decision' in relation to a person, means a decision to consent or refuse consent to the commencement or continuation of any treatment of the person (s 3).
Section 110ZD is in the following terms:
(1)If a patient is unable to make reasonable judgments in respect of any treatment proposed to be provided to the patient, the person responsible for the patient under subsection (2) may make a treatment decision in respect of the treatment.
(2)The person responsible for the patient is the first in order of the persons listed in subsection (3) who
(a)is of full legal capacity; and
(b)is reasonably available; and
(c)is willing to make a treatment decision in respect of the treatment.
(3)For subsection (2), the persons are the following
(a)the patient's spouse or de facto partner if that person
(i)has reached 18 years of age; and
(ii)is living with the patient;
(b)the patient's nearest relative who maintains a close personal relationship with the patient;
(c)the person who
(i)has reached 18 years of age; and
(ii)is the primary provider of care and support (including emotional support) to the patient, but is not remunerated for providing that care and support;
(d)any other person who
(i)has reached 18 years of age; and
(ii)maintains a close personal relationship with the patient.
(4)For subsection (3)(b), the patient's nearest relative is the first in order of priority of the following relatives of the patient who has reached 18 years of age
(a)the spouse or de facto partner;
(b)a child;
(c)a parent;
(d)a sibling.
(5)For subsection (3)(b) and (d)(ii), a person maintains a close personal relationship with the patient only if the person
(a)has frequent contact of a personal (as opposed to a business or professional) nature with the patient; and
(b)takes a genuine interest in the patient's welfare.
(6)For subsection (3)(c)(ii), a person is not remunerated for providing care and support to the patient although the person receives a carer payment or other benefit from the Commonwealth or a State or Territory for providing home care for the patient.
(7)The person responsible for the patient cannot consent to the sterilisation of the patient.
(8)When making a treatment decision for the patient, the person responsible for the patient must act according to the person's opinion of the best interests of the patient.
(9)A treatment decision made by the person responsible for the patient has effect as if
(a)the treatment decision had been made by the patient; and
(b)the patient were of full legal capacity.
Consideration
A number of matters concerning AM have not been in any way controversial in previous proceedings concerning him in the Tribunal or in the current proceeding, and the following findings can be made:
a)AM is a person who is unable to make reasonable judgments in respect of treatment decisions relating to treatment that he requires for his various conditions. Some of that treatment is, more or less, regularly provided because of the chronic nature of some of his conditions, and some of the treatment will be episodic, according to his needs from time to time.
b)For much of the time AM may be described as a patient for whom treatment decisions will be needed, in that he will frequently require decisions to be made as to whether or not to commence or to continue some form of treatment for his various conditions.
c)No AHD, EPG or guardianship order currently exist in relation to AM, and so, in nonurgent situations, treatment decisions will need to be made for him.
d)AC and CC are both of full legal capacity and have been and will both, at least usually, be readily available and willing to make treatment decisions for AM in the future.
e)AC and CC do not fit the description of the persons described in s 110ZD(3)(a) or s 110ZD(3)(b). We consider, however, in the circumstances regarding AM's current living and support arrangements as they are known to the Tribunal, that they would meet the requirements under s 110ZD(3)(c), because they have both reached 18 years of age and are the primary providers of care and support for AM but that the payments received by them from an agency that manages AM's funding from DSC does not constitute remuneration for providing that care and support: see Chief Executive Officer, Department for Child Protection and DJC [2011] WASAT 190, per Member Gillett at [36] [60].
It follows from the above that, on any particular occasion when a treatment decision needs to be made in relation to AM, AC or CC is likely to be the person responsible under s 110ZD. We say 'likely' because circumstances may arise on occasions where both AC or CC are not available, or (although this seems very unlikely) some other person may assert they are higher on the list of persons specified in s 110ZD(3). So far as the Tribunal is aware, AM does not have any biological relative who maintains a close personal relationship with him.
The conclusion in the previous paragraph does not, however, resolve the issue in the present matter whether the Tribunal can declare that AC and CC are the persons responsible for treatment decisions under s 110ZD for all future treatment. The reasons for our conclusion that such a declaration cannot be made under s 110ZG can be summarised as follows:
a)The declaration can only be made in respect of a person about whom the Tribunal is satisfied is a patient (a person who needs treatment at the particular time) who is, at the particular time, unable to make reasonable judgments about 'the treatment proposed to be provided' to the patient (s 110ZG(1)).
b)The language of s 110ZG(1) reflects that of s 110ZD(1) in relation to the patient being unable to make reasonable judgments in respect of 'any treatment proposed to be provided'.
c)Section 110ZD(1) authorises the person responsible to make 'a' treatment decision in respect of 'the' treatment.
d)We consider that the application of s 110ZG and s 110ZD must be consistent. In our view, s 110ZD relates only to particular treatment decisions about particular, proposed, treatment to be made at particular times by certain categories of persons - who may or may not be the 'first in order' in the hierarchy of persons set out in s110ZD in circumstances prevailing at other times, when other treatment decisions are to be made.
e)We agree with the submissions made by Mr Bydder on behalf of the Public Advocate that s 110ZG(1) does not authorise a person to make decisions about future treatment that is, treatment that is not yet 'proposed' for the patient and that the person responsible must be identified for the purpose of making a treatment decision about proposed treatment, rather than treatment that may be proposed in future, by reference to facts that cannot be known in advance.
f)In case the view that the declaration power in s 110ZG is limited to currently proposed treatment (rather than extending to possible future treatment) is considered to be unreasonably restrictive, we agree with Mr Bydder's submission that the GA Act does also provide a mechanism that provides certainty as to who can be the decisionmaker for future proposed treatment. That mechanism is the making of a guardianship order under s 43, which can authorise a guardian to make all future medical treatment decisions for the represented person (not involving sterilisation procedures).
g)As we have foreshadowed above, it will on occasions be possible that a person who, correctly, is identified as the person responsible for a treatment decision at a particular time may not be such a person at a later time, for many possible reasons including that the person may no longer be of full legal capacity, may not be reasonably available or may not be willing to make a treatment decision about the proposed future treatment.
In summary, we consider s 110ZD to be a means by which a person can be identified to make a treatment decision in respect of particular, proposed treatment, in circumstances prevailing at that time. We consider that the primary task that s 110ZG performs is to enable the Tribunal to provide clarity, on the facts found to be applicable at that time, where there is uncertainty or dispute as to who is to be identified as the person responsible.
We concluded, for the reasons set out above, that the Tribunal was not able, under s 110ZG, to declare that AC and CC were the persons responsible for treatment decisions in the future for AM, and dismissed the application. We repeat our view, however, that if the circumstances known to the Tribunal were to continue, then AC or CC will be, and will in all probability continue to be, the person responsible for AM's treatment decisions.
Although we have concluded that the power to declare the identity of the person responsible is limited to current treatment decisions, we should, for the sake of completeness, comment that even in circumstances where the Tribunal has the power to declare who is the person responsible, such a declaration could only, in our view, identify a single person. Both s 110ZD and s 110ZG consistently refer to the person responsible in the singular rather than the plural. It is, in our view, consistent with the scheme of the legislation that, at a particular time and in relation to a particular treatment decision, a particular person will be authorised to make the decision, and that the Tribunal can identify who that person is in order to provide clarity on that point. If the Tribunal were to be able to identify more than one person as the person responsible then the very lack of clarity that the provisions are designed to avoid could be promoted.
Order
1.The application for a declaration is dismissed.
I certify that this and the preceding [20] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M ALLEN, SENIOR MEMBER
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