CB
[2021] WASAT 67
•12 MAY 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: CB [2021] WASAT 67
MEMBER: MR J MANSVELD, SENIOR MEMBER
HEARD: 9 FEBRUARY 2021
DELIVERED : 9 FEBRUARY 2021
PUBLISHED : 12 MAY 2021
FILE NO/S: GAA 4076 of 2020
CB
Represented Person
Catchwords:
Guardianship and administration - Guardianship - Treatment decisions - Ability to make reasonable judgments - Informed consent - Presumption of capacity - Common law position on informed consent
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4(3)(b), s 43, s 43(1)(b), s 51, s 64, s 84, Pt 9C, Pt 9D
Result:
Guardianship order made
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Brightwater Care Group (Inc) v Rossiter [2009] WASC 229
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
CB is 38 years of age. He was diagnosed with a non-cancerous brain tumour in early 2010.
Neurosurgery to address the brain tumour has been required on a number of occasions since the original diagnosis. This has led to cognitive weakening manifesting mainly as a significant memory impairment.
CB has been residing in a community rehabilitation facility (rehabilitation facility) and receiving specialist rehabilitation support (rehabilitation team).
In 2019, the rehabilitation team filed applications for the appointment of a guardian and the appointment of an administrator of CB's estate. The applications were made under the Guardianship and Administration Act 1990 (WA) (GA Act).
On 11 November 2019, the Tribunal made guardianship and administration orders. In doing so the following findings were made.
CB was found to be unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate and in need of an administrator of his estate (s 64 of the GA Act).
The Tribunal also found that CB was unable to make reasonable judgments in respect of matters relating to his person and in need of a guardian (s 43 of the GA Act).
The Tribunal appointed the Public Trustee as the plenary administrator of CB's estate and the Public Advocate as his limited guardian to decide where he is to live, whether permanently or temporarily; to determine the services to which CB should have access and to act as his next friend to commence, conduct or settle any legal proceedings on CB's behalf, except proceedings relating to his estate.
The guardianship and administration orders were set for review in five years (s 84 of the GA Act).
Current application
In 2020, the Public Advocate sought review of the guardianship order (review application). CB had reportedly consented to further neurosurgery to take place in November 2020 (November surgery) but had expressed concerns to the guardian that any post-operative treatment decisions, if he could not give his own consent, should not be made by his ex-spouse as the person responsible (Pt 9C of the GA Act).
The Public Advocate was proposing that the authority to make CB's treatment decisions be added to the existing guardianship order.
The Tribunal called a directions hearing for 27 October 2020.
At the directions hearing it was noted that the surgical team had accepted CB's consent to the November surgery (although LO, an occupational therapist assisting CB disputed that he had in fact given his own consent) and that there was no medical opinion before the Tribunal that CB was unable to give consent.
It was explained to the parties that should the authority to make CB's treatment decisions be added to the guardianship order that authority (and CB's loss of the authority) would commence from the making of the order. This could potentially have implications for the consent that CB had already given for the November surgery.
I decided to adjourn the hearing of the review application to enable the November surgery to occur.
The final hearing of the review application was heard on 9 February 2021. In attendance were CB, EB (CB's ex-spouse); LO, representatives from the rehabilitation team, the delegated guardian from the Public Advocate (guardian) and TS (CB's friend).
I decided to add the authority of making CB's treatment decisions to the existing guardianship order, amending the order made in November 2019.
I said that I would give my reasons at a later time. These are the reasons.
Reports before the Tribunal
The following reports from various professionals, were filed with the Tribunal with respect to the review application:
•Dr LM, general practitioner for CB since November 2020;
•Dr AB, neurosurgeon;
•occupational therapy assessment undertaken on 20 January 2021 when CB was in hospital (hospital assessment);
•LO, who is the specialist support coordinator for CB's support plan with the National Disability Insurance Scheme (NDIS); and
•the rehabilitation team.
Evidence and submissions
Dr LM
In her report, Dr LM states that CB has significant memory impairment and cannot retain information. CB's strong verbal skills are said to mask a lack of understanding. Dr LM is of the view that CB is not capable of making his own treatment decisions.
Dr AB
In his report, Dr AB confirms the presence of short-term memory loss for CB as a consequence of multiple surgical interventions, however considers him capable of making his treatment decisions.
Hospital assessment
The hospital occupational therapist notes that a score of 27/30 CB secured on a cognitive screening test undertaken in hospital should be interpreted with caution as the results do not reflect the impact of CB's cognitive deficits in a community setting. It was noted that CB has insight into his memory deficits and he reported that he uses compensatory strategies.
LO
LO filed a written report and gave oral evidence. She states that her role is to support CB to transition from the rehabilitation facility to suitable long-term accommodation. She commenced working with CB in September 2020 and has seen him over twenty-five times mainly in a hospital environment.
LO states that CB's recovery from the November surgery has been complex and has required several additional surgical procedures.
LO contends that CB is at ongoing risk if he is allowed to continue to make his own treatment decisions. She refers to his significant memory impairment which she has found places CB under considerable stress and anxiety when dealing with complex treatment matters for which he will often defer to EB for advice, not uncommonly contacting her in the middle of the night or early morning. LO says this causes a level of tension between them given that they are separated.
LO states that CB has retained a high level of verbal skills and has an ability to pick up cues from others such that he appears to recollect or understand when he does not. LO says that CB is a young man who wants to be involved in his decision-making and will often convince others that he has a far greater understanding of his circumstances than he actually has.
LO provided an example of a surgical procedure that CB underwent on 16 January 2021. She visited him in hospital the next day, however CB was unable to provide her with any information as to whether surgery had actually occurred and whether he had physical evidence of that surgery. When prompted and shown the physical features of the surgery, CB recalled the surgery however could not give an account of the nature of that surgery.
Another more recent example occurred when CB went to his pharmacy to pick up a prescribed injection when it transpired the medication had already been administered to him which he did not recall.
LO also cautioned the use of the results of the cognitive screening test mentioned in the hospital assessment, stating that the particular screening test is generally used for dementia in older persons.
LO supports the assessment made by Dr LM. She says that there is a plan for a neuropsychological assessment to take place, however is concerned at the time that may take.
LO states that the intent is for CB to be eventually discharged from the rehabilitation facility and to live independently in a private rental with a multidisciplinary team funded through NDIS.
LO says this is a different model to the intensive support currently given to CB by the rehabilitation team.
Rehabilitation team
The rehabilitation team filed a written report and gave oral evidence.
The rehabilitation team states that CB's brain injury has led to significant cognitive impairments anticipated to be longterm in nature.
CB is said to be able to hold a simple conversation, demonstrating a wide vocabulary which masks his cognitive difficulties.
CB is oriented to person, time and place but needs compensatory strategies (prompts and alarms) to assist him.
CB presents with profound difficulties with initiation impacting directly on his ability to complete necessary tasks.
CB displays impaired memory particularly in recalling newly presented information. He has difficulties remembering to perform a planned action or recalling the intention underlying a planned action.
CB has also experienced mental health issues and is currently receiving treatment for depression.
According to the rehabilitation team these combined impairments or deficits limit CB's capacity to problem solve and make reasonable decisions concerning complex matters.
Despite these concerns, the rehabilitation team submits that CB should be allowed to continue to make his own medical decisions. CB is said to have advised the rehabilitation team on 5 February 2021 of his wish to retain treatment decision-making authority.
The rehabilitation team point to the fact that in early 2020 when growth of the tumour was found to have taken place, CB independently requested a second neurological opinion after his then neurosurgeon advised of a poor prognosis. The second opinion led to successful surgery to which CB had given consent.
The rehabilitation team is of the view that compensatory strategies can continue to be used to assist CB in remembering medical information as required. These might include devices to record the information for subsequent retrieval. Whilst CB is in the care of the rehabilitation team, a nurse would accompany him to all complex medical appointments.
The rehabilitation team expresses concerns that CB does not fully understand the restrictive nature of having a guardian appointed to make his medical decisions.
The rehabilitation team favours a neuropsychological assessment to provide an objective measure of the degree of CB's cognitive capacity.
CB is ready for discharge from the rehabilitation facility and he wishes to be discharged to a private rental with formal support funded through NDIS.
EB
EB says that she has never been asked by treating teams to give consent to medical intervention for CB, however CB will frequently call her for advice when a treatment decision needs to be made. The advice sought is often whether he should consent to the procedure.
EB states that CB retains his verbal abilities. She believes that those interacting with CB, including hospital staff, fail to recognise and take account of his severe short-term memory. She says that medical staff may, for example, speak with CB in the morning and advise him of a course of medical action which he would have largely forgotten if she visits in the afternoon.
EB states that unless CB has a support person with him when medical information is provided upon which a decision has to be made, then the information is soon lost to CB.
EB says that it is difficult for her to follow up matters for CB to secure correct information for him which in any case has become problematic because of their separation.
EB disagrees with the rehabilitation team's position that CB independently sought a second opinion in early 2020 concerning possible surgery and his prognosis. She states that the initial neurosurgeon who advised of a poor prognosis said that a second opinion could be facilitated and this was also recommended by another specialist (an endocrinologist), CB was seeing at the time.
EB agrees with LO that the lack of remembering causes CB great distress. She believes CB's vulnerability leaves him open to influence.
TS
TS is a close friend of CB and has been quite involved in CB's life over the past two years. He says that he cannot rely upon the information given to him by CB because of the significant memory problems.
CB will often display a lack of sureness when recounting earlier events or discussions and whilst he may have a general view, he is unable to provide any details. TS states that he obtains most of the necessary information from EB.
TS states that if a guardian were to be appointed to make CB's treatment decisions, he would not propose himself because he would not be able to devote the necessary time to the required tasks.
Guardian
The guardian supports the evidence and submissions of LO. She says she has had direct experience of CB contacting her in some distress because different hospital team members would have discussed treatment matters with him which he found confusing.
CB
In his oral evidence CB articulated his need in this way:
I think I do need some assistance especially in - when it comes to these decisions. I know - I would like to think my memory is okay, but I know I lose a lot in translation. There's a lot lost over time. It just becomes more and more difficult to recover - to recall. So I suppose when it comes to especially medical side of things, the importance of that and having it all correct sort of drives me to believe that, you know, some assistance is, you know, required.
(ts 32, 9 February 2020)
CB goes on to say that when he is reminded of things that he has said and which he cannot remember it 'completely throws me': (ts 32, 9 February 2021)
CB supports the appointment of a guardian to make his treatment decisions.
Discussion of the issues
The current guardianship order gives the Public Advocate the authority to make decisions for CB in the areas of his personal life concerning his living arrangements, support services and next friend duties in personal matters.
The finding upon which this was based is that CB is unable to make reasonable judgments in respect of matters relating to his person (s 43(1)(b) of the GA Act).
A question for the Tribunal is whether that finding should extend to cover CB's treatment decisions.
The common law position on whether a person is able to give informed consent to treatment (or to withhold consent) is instructive in the exercise of determining whether CB can make reasonable judgments about his medical matters.
The common law was considered by the Supreme Court of Western Australia in Brightwater Care Group (Inc) v Rossiter [2009] WASC 229 (Rossiter). The following principles were stated at [23] to [27]:
•an adult person is assumed to be capable of having the mental capacity to consent to, or refuse, medical treatment (reflecting the statutory presumption of capacity in s 4(3)(b) of the GA Act).
•An adult person has the right of autonomy or selfdetermination, the right to choose how he or she should live his or her life.
•The informed consent of the patient is required before any medical treatment can be undertaken lawfully (but note Pt 9D of the GA Act as it relates to the provision of urgent treatment).
•An individual of full capacity is not obliged to give consent to medical treatment regardless of whether the reasons for the withholding of consent are rational, irrational, unknown or even non-existent (the withholding of consent is reflected in the definition of treatment decision in s 3 of the GA Act).
As to the factors to be considered in the ability to give informed consent, the decision in Rossiter included the capacity to comprehend and retain information given to the person in relation to his or her treatment, the capacity to weigh up that information, to weigh up alternative options, to understand the consequences of the treatment decision and the capacity of expressing reasons for the decision (although as stated, a capable person is not obliged to give reasons) (Rossiter at [13] and [14]).
It seems to me on the evidence that there is a consensus amongst the parties, that left to his own devices, CB would not be able to give informed consent (make reasonable judgments) about his treatment decisions given his inability to retain new information given to him and therefore to reflect upon any decision made at a point in time in light of later information or of differing perspectives on the proposed treatment.
It is a trite observation that we use the memory of earlier decisions to inform decisions on proposed matters (including treatment). We in part judge a proposed decision on our understanding and experience of earlier, similar decisions.
CB's profound shortterm memory loss effectively prevents him from doing so as is evidenced by the distress he experiences when told about a consent he has recently given but which he has forgotten and critically where he has forgotten the information he was provided with to give that consent.
As for the possible scaffolding of CB's impaired shortterm memory with devices and other supports as proposed by the rehabilitation team, on the evidence that has not resulted in a secure practical means to ensure safe decision-making even with the intensive support of the rehabilitation team. CB's experience in the hospital setting seems not to have given him the confidence that any decision he makes at a particular point in time can be sustained when he inevitably forgets the decision.
I agree with the evidence and submissions of LO in that regard.
This will only become more problematic when CB leaves the rehabilitation facility and begins to live in independent accommodation albeit with support but not likely of the intensity and consistency he has received in rehabilitation.
This will take place in the context of likely more complex and difficult decisions needing to be made in respect to CB's brain injury.
I am therefore satisfied on the evidence that CB is unable to make reasonable judgments concerning his ongoing medical treatment.
I make the further findings in light of CB's prospective move to live in the community that on his own he would not be able to protect his own health and safety and that he is need of oversight (supervision) in the interests of his own health and safety (s 43(1)(b) of the GA Act).
I am satisfied on the evidence that it is in CB's best interests that treatment decisions are added to existing functions in the guardianship order appointing the Public Advocate as CB's limited guardian.
I do so noting the obligation of the guardian to act in what the guardian considers to be the best interests of CB, acting as far as possible (amongst other things), as an advocate of CB; in such a way as to encourage CB to live in the general community and participate as much as possible in the life of the community; in such a way as to encourage and assist CB to become capable of caring for himself and of making reasonable judgments in personal matters; and to consult CB and take account of his wishes (s 51 of the GA Act).
Orders
The Tribunal declares that the represented person, CB is:
(a)incapable of looking after his own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to his person;
(c)in need of oversight, care or control in the interests of his own health and safety; and
(d)in need of a guardian.
The Tribunal orders:
The guardianship order dated 11 November 2019 is amended so that it now reads:
1.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia 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)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(d)to determine the services to which the represented person should have access; and
(e)as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person.
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.The guardianship order is to be reviewed by 11 November 2024.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J MANSVELD, (SENIOR MEMBER)
12 MAY 2021
0