BJW

[2005] WASAT 16

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990

CITATION:   BJW [2005] WASAT 16

MEMBER:   MS J TOOHEY (SENIOR MEMBER)

HEARD:   21 FEBRUARY 2005

DELIVERED          :   24 FEBRUARY 2005

FILE NO/S:   GAA 156 of 2005

BETWEEN:   BJW

Subject

Catchwords:

Guardianship ­ Urgent application ­ Shortened service ­ Consent to medical procedure

Legislation:

Guardianship & Administration Act 1990, s 40, s 41(3) and s 43

Result:

The Public Advocate appointed limited guardian with authority to consent to any treatment or health care.  This order to be reviewed at the end of three months from the date of this decision

Category:    B

Representation:

Counsel:

Subject:     Self Represented

Solicitors:

Subject:    

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

Nil

Case(s) also cited:

Nil

MS J TOOHEY (SENIOR MEMBER):

REASONS FOR DECISIONS

Background

1. The application in this matter was made by Ms Lyn Willis, an Area Manager employed by the Disability Services Commission. It seeks an order pursuant to s 43 of the Guardianship and Administration Act 1990 ("the Act") appointing a guardian for BJW who lives in a residential care facility run by the Commission.

2. The application was lodged with the Tribunal late on Friday 18 February 2005 with a request that the Tribunal consider it urgently because BJW was to undergo a panendoscopy under general anaesthetic at Royal Perth Hospital on the morning of Monday 21 February.  Ms Willis stated that a guardian was required in order to give consent to the procedure to be carried out.  She further stated that BJW had been on a waiting list for the procedure for eight months.  Her application was supported by a medical report from Dr F, who has been BJW's general practitioner for the past six months and who had ordered the procedure to investigate certain symptoms being experienced by BJW.

3. In view of the exceptional circumstances, being that a decision had to be made at short notice or risk BJW waiting a further period for the procedure, the Tribunal shortened the time for giving notice of the hearing and dispensed with the requirement to give notice to all persons other than the applicant, BJW and the Public Advocate, pursuant to s 41(3) of the Act.

Evidence and Material before the Tribunal

1. According to Ms Willis' application, BJW is aged fifty-four and has an intellectual disability;  he has no known relatives and has no visitors; he is unable to make complex decisions although he makes decisions "about everyday" needs.

2. According to Dr F's report, he has known BJW for 19 years and is now his regular medical attendant.  Dr F stated that BJW has an intellectual disability and schizophrenia.  He described him as being incapable of making decisions about his personal health care, his living situation, and his financial affairs.

3. The Office of the Public Advocate made further inquiries of BJW's doctors and Ms Willis over the weekend before the oral hearing.

4. A hearing of the Tribunal was held at Royal Perth Hospital on 21 February 2005, prior to the proposed procedure being carried out.  Ms Willis, BJW and Ms Lehmann-Bybyk from the office of the Public Advocate attended.  Also in attendance were two members of staff from the residential facility where BJW lives.

5. Ms Lehmann-Bybyk provided the Tribunal with a written report of her investigations.  Her report detailed BJW's medical history as obtained verbally from Dr F and BJW's previous general practitioner, Dr S, as well as from Ms Willis.  Both doctors, who between them have treated BJW over a period of some 19 years, were of the view that BJW's intellectual disability means he is not able to make reasoned decisions regarding his medical treatment.  Dr F described BJW as functioning at "younger than a three-year-old level" and said he does not have the intellectual ability to verbally communicate in a way to make himself understood.  Dr S stated unequivocally that he had no doubts that BJW lacked the capacity to make the required decisions concerning his health care.  Ms Willis supported the doctors' comments.

6. The history of medical treatment obtained by Ms Lehmann-Bybyk included a range of treatment including a video fluoroscopy and a computerised tomography scan, treatment for testicular cancer, and a range of medication for schizophrenia, epilepsy and other conditions.

The Legislation

1. The relevant provisions of the Act are as follows:

   Section 43 provides that, where the Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made:

   (a) has attained the age of 18 years;

   (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

   (c) is in need of a guardian

   the Tribunal may by order declare the person to be in need of a guardian.

2. The principles to be observed by the Tribunal when dealing with proceedings under the Act are set out in s 4. In summary, they are, firstly, that every person is presumed to be capable of looking after his or her own safety and health; of making reasonable judgments in respect of matters relating to his or her person; of managing his or her own affairs; and of making reasonable judgments in respect of matters relating to his or her estate. Secondly, an order appointing a guardian or administrator shall not be made if the needs of the person concerned could be met by other means less restrictive of their personal freedom of decision and action. Thirdly, 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. Fourthly, an order appointing a limited guardian or an administrator shall be in terms that, in the opinion of the Tribunal, impose the least restrictions possible in the circumstances on the person’s freedom of action and decision. Finally, the Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned.

3. Where a person is appointed as a limited guardian, he or she shall have such of the functions mentioned in s 45 of the Act as the Tribunal vests in him or her in the guardianship order: s 46.

4. Unless she is appointed to act jointly with another person or persons, the Public Advocate shall not be appointed as a guardian unless there is no other person suitable and willing to act: s 44(5).

Findings and Reasons

1. The Tribunal accepts the uncontroverted opinions of Dr F and Dr S, and finds that BJW is not capable of making reasonable judgments in respect of matters relating to his person and, in particular, of giving informed consent to medical treatment.  The Tribunal further accepts, and finds, that BJW is in need of a guardian for the purpose of consenting to medical treatment.

2. The Tribunal is satisfied that there is no person suitable or willing to act as limited guardian other than the Public Advocate and, in those circumstances, appoints the Public Advocate limited guardian with the function of consenting to any treatment or health care of BJW.

3. The Tribunal notes that Dr F has stated in his report that BJW is not capable of making reasonable decisions in relation to his personal health care, his living situation or his financial affairs.  It is not clear how, or whether, consent to previous medical treatment has been obtained.  Nor is it clear on what basis BJW's financial affairs are being administered.

4. In the circumstances, the Tribunal is of the view that the Public Advocate should be appointed guardian for a period of three months for the purposes of considering whether to consent to the procedure to be carried out on 21 February 2005 and any ongoing treatment that may be required as a result.  Further, that the Public Advocate should be asked to investigate BJW's circumstances generally and report on the need for a guardian to be appointed for a longer period and, if so, with authority for what functions.

Decision

1. The Public Advocate be appointed limited guardian with authority to consent to any treatment or health care of BJW.   This order to be reviewed at the end of three months from the date of this decision.

   I certify that this and the preceding five pages comprise the reasons for decision of the Tribunal.

__________________________

J Toohey

Senior Member