ADP
[2005] WASAT 131
•10 JUNE 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: ADP [2005] WASAT 131
MEMBER: MR J MANSVELD (MEMBER)
HEARD: 19 APRIL 2005
DELIVERED : 10 JUNE 2005
FILE NO/S: GAA 303 of 2005
BETWEEN: ADP
Applicant
Catchwords:
Guardianship - Need for a guardian - Needs of the person - Meaning of treatment - Consent to treatment - Restraint
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 119
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)
Result:
The order for plenary guardianship made by the Guardianship and Administration Board on 6 March 2001 was revoked and a new order made for the Public Advocate to be limited guardian.
Category: B
Representation:
Counsel:
Applicant: Self represented
Solicitors:
Applicant: Self-represented
Case(s) referred to in decision(s):
Re Application for Guardianship Order (BCB) (2002) 28 SR (WA) 338
Re BTO, unreported decision of the Full Board of the Guardianship and Administration Board delivered 14 October 2004 (Hon Justice ML Barker, President, Dr A McCutcheon, Member and F Child, Member)
Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) 320
RW, unreported decision of the Guardianship and Administration Board, No 020295, 19 December 2003
Case(s) also cited:
Secretary, Department of Health and Community Services v JWB (Marion's case) (1992) 175 CLR 218
MR J MANSVELD (MEMBER):
REASONS FOR DECISION
Background
On 11 March 2005, the Public Advocate filed an application for review of the guardianship order for ADP.
The Public Advocate is seeking revocation of the order appointing her as ADP's plenary guardian. The Guardianship and Administration Board made that order on 6 March 2001 for five years.
The Tribunal is deciding this application because the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act2004 (WA) came into effect on 24 January 2005 and the functions of the Board were taken over by the Tribunal.
The Tribunal heard the application on 22 March 2005 and reserved its decision.
Capacity of ADP
When the guardianship order was made in 2001, the Board found ADP to lack capacity pursuant to s 43(1)(b) of the Guardianship and Administration Act1990 (WA) ("the Act").
Section 43(1)(b) provides:
"43. Making of guardianship order
(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) … ,
(b) is –
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and …"
Section 4(2)(b), as one of the principles which the Tribunal shall observe in dealing with proceedings commenced under the Act, presumes a person to be competent unless the contrary is proved to the satisfaction of the Tribunal.
The Tribunal has before it a report from Dr L, ADP's general practitioner dated 31 March 2005. Dr L's opinion is that ADP suffers from "frontal [and] temporal lobe degenerative dementia." The condition is currently static but in view of ADP's age is likely to deteriorate. Dr L is of the opinion that ADP is currently incapable of making reasonable decisions in relation to his health care and living situation. The Public Advocate does not dispute this view and in her report states that ADP has been "… variously diagnosed as having frontal lobe dementia, chronic personality difficulties with Diogenes syndrome, depression and paranoid psychosis".
I am satisfied that ADP continues to meet the requirements of s 43(1)(b) of the Act and therefore remains a person for whom a guardianship order could be made.
The Public Advocate's submission
The Public Advocate was given plenary functions in the 2001 Order. The Public Advocate is now submitting that a guardian is no longer needed. In her written report dated 13 April 2005 and in evidence given by her representative at the hearing of 19 April 2005, the Public Advocate submits as follows.
ADP currently resides in a nursing home to which he was first admitted in May 2001 with the consent of the guardian. He has from time to time stated that he wants to leave but he has never actually attempted to leave. He no longer talks about leaving. The placement at the nursing home is considered by the guardian to be permanent, in that ADP is provided with the requisite care and is settled. A guardian is therefore no longer required to make the accommodation decision and even if ADP's accommodation were to become an issue in the future, then a fresh application could be lodged with the Tribunal by the nursing home.
ADP's behaviour has over the years been difficult to manage by the aged care facilities in which he has lived. There is some history of resistant behaviour (including refusing to take his medication), aggression and abusive language. In September 2001, ADP was referred to the Armadale Mental Health Service because of behavioural concerns. From this admission ADP was prescribed psychotropic medication and behaviour management strategies were implemented. By January 2002, however, the Public Advocate reports that ADP was no longer taking psychotropic medication.
In August 2001, the guardian was contacted by the nursing home regarding the use of bed rails to prevent ADP rolling out of bed. The guardian gave consent. About 12 months later the guardian was informed by the nursing home that a review had been undertaken and the bed rails were no longer required. ADP was using the rails as a mobility device, which was inappropriate, and a grab rail was instead installed.
In February 2005, ADP was admitted to hospital with cellulitis for which he was prescribed intravenous antibiotics and from which he has fully recovered.
ADP is currently given olanzapine, 5 milligrams daily, which is put in his food without his knowledge. This medication is prescribed by the GP, Dr L who reports it is given to treat ADP's "paranoid psychosis". There is not ongoing specialist psychiatric review of the appropriateness of the medication. Both nursing staff at the nursing home and Dr L have explained to the guardian that the medication together with behaviour management strategies ensures ADP remains "settled" and without it his behaviour would become unmanageable and jeopardise his placement at the nursing home.
ADP is said by the guardian to be receiving "optimal health care" through the services of Dr L and the nursing home. His general health is good and the guardian has only provided minimal consent to medical treatment during the term of the guardianship order. A guardian is therefore no longer required and if a consent issue were to arise in the future a guardianship application could be lodged with the Tribunal.
The Public Advocate also refers the Tribunal to a previous decision of the Guardianship and Administration Board (the Board) styled, RW, unreported decision of the Guardianship and Administration Board, No020295, 19 December 2003, where it was determined that an elderly man with dementia and intellectual disability no longer required a guardian despite the fact that he did not have anyone to make lifestyle decisions for him. The Public Advocate contends that the represented person's circumstances in that case are similar to those of ADP.
Need for a guardian, discussion
When a person is found to be incapable, pursuant to s 43(1)(b) of the Act, the question that next has to be considered is whether he or she "is in need of a guardian": s 43(1)(c). Such need is read subject to s 4(2)(c) of the Act which provides:
"…
(c)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action."
The meanings of "is in need of a guardian" and "needs of the person" were considered by the Full Board in Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) 320 at 320‑332. The Board took the view that the terms involve different tests. Where the provisions of s 43(1)(b) are met it would usually follow that the person "is in need of a guardian" because of the absence of formal legal authority to make decisions for the person. However, this will not always be the case. In MM (supra) at 330:
"The mere fact that a person has a disability that makes him unable to make reasonable decisions does not automatically mean the person is "in need of a guardian"…Such a need might not exist under s 43(1)(c), for example, if there is some other statutory provision which gives legal authority for the decision-making in question (cf s119) or if there is in fact no live issue or foreseeable conflict in relation to the personal affairs of the represented person so as to give rise to the need for this Board to intervene in the life of the represented person by making a formal order.
… the phrase 'needs of the person' … involves a different test. The 'needs' there described are of wide import and encompass all the wants and necessaries of the person. Thus there is a two step process. The Board must first determine whether there is a need for a guardian in s 43(1)(c)…and then move on to the issue whether notwithstanding the absence of any formal legal authority to deal with the affairs of the person, the needs of that person can nevertheless be met under informal arrangements which are less restrictive of the person's freedom of decision and action."
In respect of the matter before this Tribunal, the guardian mentions two areas of decision-making for ADP that have arisen during the term of the order; these being the consent to ADP's treatment and health care and decisions about where and with whom he is to live. I will consider each in turn against the two-step process articulated in MM (supra) as to whether there remains a need to have a guardian appointed for ADP.
Treatment and consent
The guardian submits that ADP is receiving "optimal care" from a combination of the efforts of the GP, Dr L and the nursing home staff and that Dr L is agreeable to continue to provide treatment for ADP without the need for formal guardianship. He is given olanzapine 5 milligrams a day without his knowledge, which together with "behavioural strategies", represents a regime of behaviour management. The guardian reports Dr L as stating that the olanzapine is prescribed to treat ADP's "paranoid psychosis" although this diagnosis is not included in Dr L's report to the Tribunal of 31 March 2005 in which ADP is said to be suffering from a dementing condition.
Before considering the steps in MM, I must first consider whether the giving of olanzapine to ADP in the circumstances mentioned is treatment for the purposes of the Act.
"Treatment" is defined in s 3 of the Act.
" 'treatment' means any medical, surgical, dental or related treatment or care that may lawfully be provided to a patient with the patient's consent or the consent of any person authorised by law to consent on behalf of the patient, but does not include the procedures referred to in Division 3 of Part 5."
The extent of the meaning of treatment was considered in Re BTO, unreported decision of the Full Board of the Guardianship and Administration Board delivered 14 October 2004 (Hon Justice ML Barker, President, Dr A McCutcheon, Member and F Child, Member). For the purposes of the matter before this Tribunal the following is relevant:
"In the context of the Act, and more particularly in the context of s 119, we tend to the view that the concept of treatment adopted by the Act appears to include not only medical or surgical procedures designed actively to treat a person's illness or condition, but also the provision of care in the form of oversight of a person's condition and medical advice as to by what measures it may best be managed, the prescription of courses of medication and the like …"
I am not satisfied on the evidence that the olanzapine prescribed for ADP is given solely to treat a medical condition despite the wide meaning given to "treatment" in the Act (Re BTO (supra)). According to the "MIMS Annual" (2001 Edition), olanzapine is an atypical antipsychotic agent used in the treatment of schizophrenia and related psychoses. The recommended dosage is within the range of 5 to 20 milligrams a day. The drug has a number of contraindications.
Whilst I accept the guardian's evidence that Dr L reported to her that the olanzapine is, in his opinion, prescribed for ADP's "paranoid psychosis" this diagnosis is not corroborated by current, specialist psychiatric assessment. Indeed the evidence given indicates that psychiatric review has not taken place for some time and that by January 2002 ADP was no longer taking psychotropic medication after referral to the Armadale Mental Health Service in September 2001.
The evidence of the guardian is that ADP is given olanzapine which together with behavioural strategies ensures that he remains "settled". The amount given is at the lower end of the recommended dosage but on the evidence available indicates some level of restraint is intended. I find this to be the case and my order will reflect this finding.
I do not, however, exclude the possibility that the prescribing of olanzapine for ADP is in part to treat a medical condition and I should, for the sake of certainty, deal with this issue.
Section 119 of the Act provides for consent to treatment and reads:
"119. Medical and dental treatment
(1)If in the opinion of a practitioner a person presented to him for treatment –
(a)is in need of urgent treatment;
(b)is incapable of consenting to the proposed treatment; and
(c)is at the time of presentation a person for whom a guardian could be appointed under this Act,
(d)the practitioner may provide the treatment if the person referred to in subsection (3) consents to it.
(1a)A practitioner may provide treatment under subsection (1) without the consent of the person referred to in subsection (3) if in the opinion of the practitioner it is not practicable to obtain that consent.
(2)If in the opinion of a practitioner a person presented to him for treatment –
(a)is in need of treatment that is not urgent treatment;
(b)is incapable of consenting to the proposed treatment; and
(c)is at the time of presentation a person for whom a guardian could be appointed under this Act,
the practitioner may provide the treatment if the person referred to in subsection (3) consents to it.
(3)For the purposes of subsections (1) and (2), the person who may consent to treatment is the first in order of priority of the following persons –
(a)a guardian of the person needing the treatment;
(b)the spouse or de facto partner of the person needing the treatment;
(c)a person who, on a regular basis, provides or arranges for domestic services and support to the person needing the treatment but does not receive remuneration for doing so;
(d)a person who is the nearest relative (other than the spouse or de facto partner) of the person needing the treatment and who maintains a close personal relationship with the person needing the treatment;
(e)any other person who maintains a close personal relationship with the person needing treatment; or
(f) a person prescribed in the regulations.
(3a)For the purposes of subsection (3) a person is to be regarded as maintaining a close personal relationship with the person needing the treatment if the relationship is maintained through frequent personal contact and a personal interest in the welfare of the person needing the treatment.
(4)In this section ‑
'practitioner' in relation to medical treatment means a medical practitioner within the meaning of the Medical Act 1894, and in relation to dental treatment means a dentist registered under the Dental Act 1939; and
'urgent treatment' means treatment that in the opinion of the practitioner concerned is urgently needed ¾
(a)to save the life of the person needing the treatment;
(b)to prevent serious damage to the health of the person needing the treatment; or
(c)to prevent the person needing the treatment from suffering or continuing to suffer significant pain or distress."
A plain reading of s 119 suggests that when a medical practitioner considers treatment, consent is required except in the narrow circumstances allowed for under s 119(1a) for "urgent treatment". If this is correct then a substitute decision-maker is required for treatment decisions in the situation where a person is found to be incapable under s 43(1)(b) of the Act. The two step process suggested by the Board in MM (supra) leads firstly to an investigation under s 43(1)(c) with the possible outcome that the person is not in need of a guardian because s 119 is the appropriate statutory provision which gives legal authority to the decision-making. If, however, s 119 cannot apply because, for example, there is no one available in the hierarchy of persons to give the consent, the second step demands an investigation under s 4(2)(c). That investigation could not be fruitful, however, if, as has been earlier stated, legal consent is required for treatment.
The Public Advocate is submitting that s 119 and s 4(2)(c) allow for the situation where treatment can be given without formal consent, with regard to the former because it is not an exclusive code governing the question of consent and with regard to the latter because if treatment is being provided "optimally", the "needs of the person" are being met and a guardianship order is not required.
The Board has considered these matters in a number of cases particularly the Full Board in Re Application for Guardianship Order (BCB) (2002) 28 SR (WA) 338 and Re BTO (supra).
The Board said in Re BTO:
"The same question concerning the need to appoint a guardian might also arise if, under the general law, a medical practitioner in a case like that before us were able to afford treatment to a patient without the consent of the patient or any other person concerned about his or her welfare. This issue was addressed in Re: BCB; Application for a Guardianship Order … and we need not on this occasion revisit it. In short, the Board there noted that the English House of Lords In re F (Mental Patient: Sterilization)[1990] 2 AC 1, recognized that in certain situations a medical practitioner may act in accordance with a "principle of necessity" and treat a patient without obtaining the consent of the patient. However, some doubt about the recognition of such a principle under Australian law was expressed in some of the judgments in the High Court decision in the case colloquially as Marion's case (1992) 175 CLR 218. As a result, in Re BCB the Board thought it unwise to conclude that the general law applicable in Western Australia presently permitted a medical practitioner or any other health professional to provide treatment without a patient's consent. With this approach to the law we respectively agree."
In the earlier case of BCB at 348 ‑ 349 the Board also appeared to recognise the tension that exists in attempting to reconcile the requirement to give consent with a consideration of less restrictive alternatives to the possible making of a guardianship order.
"The Board acknowledges that doctors and other health professionals often undertake 'routine procedures' on people who are not competent to consent to them, even though strictly speaking there would appear to be no legal authority to do so. Treatment is given on the informal authority of the carer, or as in the case of this represented person, without any consent. The Board also acknowledges the practical reasons for allowing routine procedures to be undertaken without formal legal authority. However, in its enquiry under the Act into less restrictive alternatives it is necessary for the board to consider the appropriateness of these informal arrangements and to be satisfied that they are in the best interests of the represented person"
When read together, BCB (supra) and Re BTO (supra) appear to allow only for the concession of "routine procedures" to the regime of formal consent giving to treatment. The Board in BCB did not further define the term but I am satisfied that it does not include the ongoing prescription of the antipsychotic medication, olanzapine to assist in the management of ADP's behaviour.
It follows that even in a situation where the olanzapine can in part be considered treatment for the purposes of the Act, the two-step process in MM (supra) leads to the appointment of a guardian. ADP is in "need of a guardian" pursuant to s 43(1)(c) of the Act because s 119 is not available as an alternative authority to give consent to treatment. Further, the "needs" of ADP under s 4(2)(c) of the Act cannot be met by means less restrictive of the appointment of a guardian given the finding that the prescribing of olanzapine is not a routine procedure.
ADP's accommodation
The guardian states that ADP has been accommodated in the present nursing home since May 2001 and there is no intention in the current circumstances for ADP to live anywhere else. I accept that ADP is no longer asking to leave and is "settled" although as I have found the extent to which this is the case as a consequence of the medication he is being prescribed, specifically olanzapine, is not clear from the evidence. Pursuant to the reasoning in MM (supra) this lack of clarity may constitute a "live issue" as regards the question of accommodation, given the apparent concern on the part of the nursing home that ADP's accommodation is in part dependant upon him continuing to receive the olanzapine.
There may be a further "live issue" as the guardian has given evidence that the nursing home administration is reluctant about revocation of the order because then ADP "would have no one". This concern is based on the fact that ADP has only very limited contact with his family. He has a brother who is the only family member to have regular contact with him but who is not willing to accept a decision-making role.
I am satisfied that ADP "is in need of a guardian" pursuant to s 43(1)(c) in relation to his accommodation. There is an ongoing need for someone with legal authority to decide where he should live given the intimate connection between the management of his behaviour, the accommodation options available to him and the decisions to be made about them. This need cannot be met in a less restrictive way than the making of an order because ADP's needs should not be left to the decisions of persons, in this case the GP and nursing home staff, whose interests might not always coincide with the specific interests of ADP.
The decision in RW
The Public Advocate has referred to this decision of the former Guardianship and Administration Board made on 19 December 2003 in which a guardianship order was revoked even though there was no one for the person to give formal consent to medical and other matters. The Public Advocate contends this case acts as a guide to how the application in respect of ADP should be determined.
I accept that consistency in decision-making is an important goal of the Tribunal. However, the problem with taking the decision in RW (supra) into account is that I do not have the benefit of written reasons. I am not in a position to know the particular facts of the case or the reasoning of the Board and am therefore prevented from giving consideration to it in relation to my determination in the matter before the Tribunal.
Other guardianship functions
I am satisfied on evidence before the Tribunal that there are no further functions that the guardian should be given other than those I have considered, they being accommodation, treatment and health care and the authority to consent to restraint.
I am also satisfied that pursuant to s 44(5) of the Act, the public advocate should continue as ADP's guardian as there is no other person who is suitable or willing to act.
Order
It is ordered that:
The order for guardianship made by the Guardianship and Administration Board on 6 March 2001 be revoked and a guardianship order in the following form be substituted for it:
The Public Advocate of 30 Terrace Road, East Perth WA is appointed ADP's limited guardian with the following functions:
1.to decide where the represented person is to live, whether permanently or temporarily;
2.to decide with whom the represented person is to live;
3.to consent to any treatment or health care of the represented person subject to Division 3 of Part 5 of the Act;
4.to consent to the use of chemical or physical restraint in respect of the represented person and to decide matters incidental thereto.
The Tribunal will commence a review of this order by 31 May 2010.
I certify that this and the preceding 13 pages comprise the reasons for decision of the Tribunal.
__________________
Mr J Mansveld
Member
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