BW
[2007] WASAT 244
•19 SEPTEMBER 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: BW [2007] WASAT 244
MEMBER: MS D DEAN (MEMBER)
HEARD: 21 AUGUST 2007
DELIVERED : 19 SEPTEMBER 2007
FILE NO/S: GAA 1303 of 2007
BETWEEN: BW
Represented Person
Catchwords:
Review of guardianship order - Public Advocate limited guardian with the functions of making decisions in respect of accommodation, medical decisions and services - Public Advocate confirmed as limited guardian - Guardianship order confirmed
Legislation:
Family Court Act 1997 (WA)
Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 43, s 43(1)(a) and s 43(1)(b), s 44, s 44(5), s 45, s 46, s 84, s 119(3)
Result:
The Public Advocate is appointed limited guardian
Order to be reviewed by 21 August 2012
Category: B
Representation:
Counsel:
Represented Person : Self-represented
Solicitors:
Represented Person : Self-represented
Case(s) referred to in decision(s):
LGW [2004] WAGAB 4
NCK [2004] WAGAB 6
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The represented person is a young woman with a dual diagnosis of a mental illness and an intellectual disability. She lives in the community with her fiancé who also has an intellectual disability.
A guardianship order was made in 2006 appointing the Public Advocate limited guardian to decide where and with whom the represented person should live, to make decisions about medical and health matters and to determine the services to which she should have access. The order was made for twelve months and was reviewed in August 2007.
At the review hearing the Public Advocate reported that she had not been called on to make any decisions during the term of the order and therefore questioned whether there was a need for the order to continue. Evidence was provided that the represented person, who was on a community treatment order (CTO) to ensure compliance with treatment of her psychiatric illness, had ongoing medical problems not covered by the CTO, and had had at least one medical incident during the term of the guardianship order.
Evidence was provided at the hearing that the represented person was in receipt of support services but would benefit from additional services. Evidence was also provided that she was at risk of losing her accommodation because of her antisocial behaviour.
The Tribunal found that a guardian was needed to advocate and make decisions on behalf of the represented person to ensure that she continued to be accommodated appropriately, that her medical and health care needs were managed appropriately and that she had access to services appropriate to her needs.
The Tribunal confirmed the order appointing the Public Advocate limited guardian for a further five years.
Background
On 22 August 2006, orders were made appointing the Public Trustee plenary administrator and the Public Advocate limited guardian of BW, the represented person. The Public Advocate was provided with decision‑making functions in the areas of health care, accommodation and services.
On 21 August 2007, in accordance with s 84 of the Guardianship and Administration Act 1990 (GA Act), the Tribunal reviewed both orders and confirmed the appointment of the Public Trustee. The Tribunal reserved the decision in respect of the guardianship order. These reasons deal with the decision in respect of the review of the guardianship order only.
Evidence available to the Tribunal prior to the hearing
The following written information was provided to the Tribunal prior to the hearing:
•Report from the represented person's general practitioner (GP) for the last 17 years. The GP stated that the represented person has a diagnosis of "severe schizo‑effective disorder" and an intellectual disability. He assessed her as incapable of making reasonable judgements in relation to her personal health care, living situation or financial affairs. He submitted that her "prognosis is poor. She has no insight and is unable to take care of basic tasks of daily living. She continues to display self harm behaviours … [and] has no concept of preventative health measures". He assessed her as incapable of executing an enduring power of attorney (EPA).
•Report from the Local Area Co‑ordinator (LAC), DSC provided a psycho‑social history of the represented person and recommended that she requires a guardian as she is unable make "reasoned decisions" for herself. The LAC provided evidence that the represented person frequently puts herself at risk by allowing homeless people into the home she shares with her fiancé. She submitted that the represented person "will be likely to require someone to assist her decision‑making or make decisions on her behalf for the foreseeable future".
•Report from the mental health case manager who stated that the represented person's mental health is "usually stable but is compromised by her use of illicit drugs". Further her "safety and wellbeing is compromised due to her inability to make reasonable decisions". He recommended continuation of the guardianship order, particularly in the area of medical decision‑making.
•Report from a consultant psychiatrist who confirmed the diagnoses of intellectual disability and schizophrenia coupled with a personality disorder. The psychiatrist assessed the represented person as incapable of making reasonable judgments in respect of her personal health care, living situation or financial affairs or of executing an EPA. The psychiatrist referred to a "guarded prognosis due to … multiple disorders" and a "history of treatment resistance" further "complicated by substance abuse". She said the represented person has "poor insight and judgment. Has difficulty thinking logically, unable to consider alternatives … unable to give consent re issues such as accommodation decisions, medical treatment, physical examination eg SARC". [Sexual Assault and Resource Centre].
•Report from the support worker who submitted that the represented person "requires prompting in all aspects of personal health care/hygiene … is extremely vulnerable to the outside world … has no sense of danger and is an obvious target to predators. In the past there has [sic] been assaults on [the represented person] when she has been out in the community unsupported." "If adequately supported has the ability to live a full and partly independent life." The support worker submitted that in her opinion the order is working in the best interests of the represented person and without it the represented person's behaviour would deteriorate.
•Report from the Public Advocate outlining the current situation and submitting that, as she has not been required to make any guardianship decisions during the period of the order, there may no longer be a need for an order.
Hearing
BW is a young woman with a dual diagnosis of a mental illness and an intellectual disability. She lives in the community and shares a house with her fiancé, CJ, who, like her, has an intellectual disability and receives support services from the Disability Services Commission (DSC).
The Tribunal heard evidence that the house in which the couple live is leased in the name of the fiancé. Some concerns were expressed, both in the written reports and in evidence provided at the hearing that, given the somewhat tenuous nature of the couple's relationship, the represented person is at risk of becoming homeless if the couple separate.
The mother provided evidence that the tenancy is also under threat because of the antisocial behaviour of the couple and their visitors. Evidence was provided in the Local Area Co‑ordinator's report and confirmed by others, including the mother and the Public Advocate at the hearing, that the fiancé and the represented person regularly allow street people into the couple's home and this puts the represented person at risk particularly as she has, in the past, been the subject of sexual abuse.
Between them, the represented person and her fiancé receive a total of 10 hours a week support services from DSC. Separation of the couple would therefore impact on the services available to the represented person which are already considered inadequate for her needs.
In addition to the issue of her accommodation there was considerable discussion about the need for additional support services to ensure that the represented person has optimal support. It is not clear whether the limited services provided to the represented person are a result of her resistance to services or because of the limited funding available to provide these. The Tribunal was informed that an application for additional funding to the appropriate authority has been made by DSC.
The mental health case manager provided evidence that the represented person has, for the last twelve months, been on a mental health community treatment order (CTO) because of a lack of compliance with her medication regime. He said she is very vulnerable to suggestion, continues to smoke marijuana and, in his opinion, continues to need a guardian to advocate and make decisions on her behalf. He gave evidence that the represented person has been reluctant to seek medical assistance and follow‑up in the past and requires monitoring and the assistance of an appointed guardian to ensure she has appropriate medical follow‑up. Other service providers supported this view.
The Public Advocate reported that she has not been required to make any decisions in respect of the order and considers that there may be no further need for an order. She pointed out that there are currently a number of agencies providing services to the represented person and suggested that it may not be in her best interests to impose another layer of decision‑maker. Representatives of the service providers at the hearing made it very clear that they believe there is a need for a guardian to co-ordinate and to oversee the service provision to the represented person.
The Public Advocate referred to the fact that the represented person is currently on a CTO which, she said, provides mental health services and psychiatric treatment. The only medication, other than those administered under the CTO that the represented person is on, is the contraceptive drug depo provera. There had been one medical incident during the term of the order of which the Public Advocate had not been advised at the time. The mental health case manager explained that his role is limited to case managing in respect of mental health services only. He, and other parties at the hearing, proposed that there is a need for a guardian to make decisions in respect of general health matters.
The represented person gave evidence that if she has a guardian to make decisions on her behalf, she wants that person to be her mother, but the mother, although very supportive of both the represented person and her fiancé, stated that she feels the role of decision‑maker would compromise her relationship with the represented person. She referred to the fact that, when angry or frustrated, the represented person can resort to violence, as has happened in the past.
Section 119 of the GA Act provides that the nearest relative has the authority to make medical decisions for a person who is incapable of making decisions for herself and is a less restrictive alternative to making a guardianship order. The fiancé is the nearest relative but, given his disability and the fact that he has a legally appointed guardian himself, the Tribunal considers he is not suitable to act as decision‑maker for the represented person.
Legislation
The principles to be observed by the Tribunal when making determinations in relation to the review of a guardianship order are the same as those applied in relation to applications for guardianship and are set out in s 4 of the GA Act.
These principles are:
•making the decision in the best interests of the person;
•every person is presumed to be capable of making reasonable judgments in respect of his or her person unless proven otherwise;
•an order appointing a guardian should only be made if the needs of the person concerned cannot be met by other means that are less restrictive of their personal freedom of decision and action;
•if an appointment is made, a plenary guardian should only be appointed if the needs of the person concerned cannot be met by a limited appointment; and
•the Tribunal should, as far as possible, ascertain the views and wishes of the person concerned.
In accordance with s 84 of the GA Act, the Tribunal must review an order within a specified period not exceeding five years from the date of making the order.
Section 43 of the GA Act provides that the Tribunal, in reviewing a guardianship order, must be satisfied that the represented person is incapable of looking after her own health and safety; is unable to make reasonable judgments in respect of matters relating to her person or is in need of oversight, care and control in the interests of her own health and safety or for the protection of others and is in need of a guardian, before it can make a determination in respect of a guardianship order.
Section 44 defines who may be appointed guardian. Section 44(5) reads:
"Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act."
Section 45 outlines the authority of a plenary guardian and describes this in terms of the powers vested in a person under the Family Court Act 1997 (WA) (FC Act) in whose favour a parenting order has been made allocating parental responsibility.
Section 46 outlines the authority of a limited guardian and provides that a limited guardian may have such of the functions mentioned in s 45 as the State Administrative Tribunal vests in him in the guardianship order.
Section 119(3) provides a hierarchy of persons who may consent to treatment in respect of a person under disability.
"(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.
Findings and reasons
Capacity of the represented person to make decisions for herself
Information provided in the written reports by the medical and paramedical professionals was consistent in assessing the represented person as lacking the capacity to make reasonable judgements for herself about her living situation, her accommodation or her medical treatment. This assessment was accepted by all those at the hearing including the represented person's mother. The Tribunal is satisfied on all the evidence available to it, both from the written reports and the evidence provided at the hearing, that the represented person satisfies the criteria in s 43(1)(a) and s 43(1)(b) of the GA Act and is a person for whom a guardianship order can be made.
Need for an order
The Public Advocate proposed that there is no need for a guardianship order as, although she has been involved in attending various case conferences in relation to the represented person during the 12 months of her appointment, she has not been asked to make any guardianship decisions during that time.
It transpired during the hearing that there has been at least one occasion when the represented person has received medical treatment without consultation with, or involvement of, the guardian. It is unknown if there were other occasions when the guardian should have been consulted in relation to health matters.
The represented person is currently on a CTO because of non compliance with psychiatric medication. This ensures that her mental health is monitored and followed up as appropriate by the mental health team but, as explained by the mental health case manager at the hearing, this does not cover her general health needs and issues.
It is clear from the evidence that the security of the represented person's current accommodation is at risk and that she requires a decision‑maker and or advocate to be involved in ensuring the best possible outcomes in respect of her long‑term accommodation needs.
Currently the represented person is in receipt of several services. Representatives of these services provided written reports and attended the hearing. All indicated that they believe there is a need for a guardian to be the contact person for and co‑ordinator of services.
The Tribunal accepts that there has been little need for a guardian to make decisions in the last twelve months but, in the opinion of the Tribunal, that does not obviate the need for an appointed guardian. It is the view of the Tribunal that the role of a guardian encompasses more than just decision‑making.
The Full Board of the former Guardianship and Administration Board (the Board) considered the question of the scope of, and the need for, a guardianship order in the decision LGW [2004] WAGAB 4. It determined that the role of a guardian extends beyond a specific decision‑making function stating:
"The scope of guardianship is therefore defined by the reference to the provisions of the Family Court Act. Section 68 of the Family Court Act defines 'parental responsibility' as 'all the duties, powers, responsibilities and authority which, by law, parents have in relation to children'." (par 33)
In NCK [2004] WAGAB 6 the Board also addressed the issues of scope and need stating:
"It follows that whether a person is in need of a guardian is the ultimate touchstone in relation to which the Board must decide that the order should be made. The concept of need is not to be determined by reference to whether particular 'authoritative' decisions are required on behalf of a person, but whether there is, or may be, a need for a guardian to intervene, in a more generalised sense, in the affairs of that person …" (par 64)
The Tribunal agrees with the reasoning in LGW and NCK and is of the view that there is a need for a guardian to advocate on behalf of the represented person to ensure that she continues to be accommodated appropriately, that her medical and health care needs are managed appropriately and she has access to services appropriate to her needs.
Wishes of the represented person
Where possible, when making a determination, the Tribunal takes into account the wishes of the person. In this case, the Tribunal heard evidence from the represented person that she would like her mother to be the substitute decision‑maker. The mother stated she is not willing to take on this role because of the negative effect it may have on the mainly positive relationship she has been able to develop with the represented person. For practical reasons then, the Tribunal is unable to give effect to the represented person's wishes in this regard.
Best interests of the represented person
For the reasons outlined above the Tribunal finds that it is in the best interests of the represented person that the guardianship order is confirmed. In keeping with the principle that a plenary guardian should not be appointed if a limited guardian would suffice, the Tribunal confirms the appointment of a guardian to decide where and with whom the represented person should live, to consent to her treatment, health care and service provision and to advocate and make representations on her behalf, where appropriate, to relevant agencies and government authorities in relation to those functions.
Given the longstanding nature of the represented person's disability and the evidence provided in respect of the chronic nature of the issues to be managed, the Tribunal is of the view that she is likely to require the authority and advocacy of a guardian for the foreseeable future. A five‑year order is therefore considered appropriate.
Order
On review under s 84 of the Guardianship and Administration Act 1990 of an order dated 22 August 2006 concerning the represented person, it is ordered that:
1.The Public Advocate of level 1, Hyatt Centre, 30 Terrace Road East Perth, Western Australia be 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; and
(d)To determine the services to which the represented person should have access.
2.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee in the Office of the Public Advocate.
3.This order to be reviewed by 21 August 2012.
I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D DEAN, MEMBER
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