CGH and NVF - [2010] WASAT 76

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: CGH and NVF [2010] WASAT 76

MEMBER: MR M ALLEN (SENIOR MEMBER)

HEARD: 30 OCTOBER 2009 AND 20 NOVEMBER 2009

DELIVERED : 25 MAY 2010

FILE NO/S: GAA 2499 of 2009
GAA 2500 of 2009

BETWEEN: CGH
Applicant
AND
NVF
Proposed Represented Person

Catchwords:

Guardianship and administration Applications for guardianship and administration orders for man with a mental illness and high care needs due to serious medical conditions Finding that the man has a mental disability but that it does not impair his ability to make reasonable judgments about his financial affairs In the alternative, if the man is unable to make reasonable judgments about his financial affairs, then he does not have a need for an administrator as the informal arrangements between the man and his former wife are such that his needs are being met Finding that the man is, by reason of his considerable medical conditions, not able to look after his own health and safety and is in need of oversight, care and control in the interests of his own health and safety Finding that the man has a need for a guardian with power to make decisions concerning accommodation and services

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 43, s 43(1), s 44, s 64, s 110ZD

Result:

Application for appointment of administrator dismissed
Guardianship order made

Category: B

Representation:

Counsel:

Applicant: Self-represented
Proposed Represented Person : Self-represented

Solicitors:

Applicant: N/A
Proposed Represented Person : N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Tribunal was asked to appoint a guardian and an administrator for a 60yearold man with a long history of suffering from a mental illness and with a number of serious physical medical conditions. The man lived alone in substandard conditions and it was alleged that his medical and other daytoday needs were not being adequately met by his family members.
The Tribunal was satisfied that the man's mental illness had been well controlled by medication for many years and that, although the mental illness constituted a mental disability for the purposes of the Guardianship and Administration Act 1990 (WA), the impact of the illness was not such as to overturn the presumption that the man was able to make reasonable judgments about his financial affairs.
In any event, the Tribunal was satisfied that the man had no present need for an administrator because the informal arrangements between the man and his former wife (from whom he had been divorced for many years but with whom he has a good relationship) were working satisfactorily and in his best interests.
However, the Tribunal accepted that the man had very considerable needs regarding his personal welfare, in particular in relation to accommodation and accessing services, and that he had not always made sound judgments in the past about such matters. He was, therefore, a person for whom a guardianship order could be made. The Tribunal was also satisfied that there was a need for a guardian with decisionmaking powers in the areas of accommodation and access to services. A guardian with powers to make decisions about medical care and treatment was not necessary at the current time because the man was accepting treatment and his conditions were stable. Should he lose the capacity to make medical decisions the provisions of s 110ZD of the Guardianship and Administration Act 1990 (WA) could be used to enable others to make decisions about medical treatment.
The Tribunal considered that great weight should be given to the man's wish that, if a guardianship order were to be made, his former wife should be appointed and the Tribunal considered that the former wife was a suitable person to be appointed as guardian.
The Tribunal dismissed the application for an administration order and made a guardianship order appointing the former wife with powers to make decisions in relation to accommodation and services, with the order to be reviewed in two years.

Background

NVF (Mr F) is a 60yearold man who has had physical and mental health issues for many years. He and his former wife (AF) were divorced in about 1994 and he has lived alone since then, but he is on good terms with his former wife and their four adult children.
In October 2009 Mr H, a social work coordinator at a suburban adult mental health clinic (clinic), applied to the Tribunal for guardianship and administration orders to be made for Mr F.

Statutory framework and issues to be determined

Section 43(1) of the Guardianship and Administration Act 1990 (WA) (GA Act) provides that the Tribunal may appoint a guardian for a person if it is satisfied that the person concerned has attained the age of 18 years and:
…
(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,
…
Section 64 of the GA Act provides than an administration order can be made in respect of a person if the Tribunal is satisfied that the person:
…
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b)is in need of an administrator of his estate,
…
A 'mental disability' is defined in s 3 of the GA Act to include 'an intellectual disability, a psychiatric condition, an acquired brain injury and dementia'.
Section 4(2) of the GA Act sets out principles that must be observed by the Tribunal when dealing with proceedings under the GA Act. In summary, these principles are:
a)The primary concern shall be the best interests of the person in respect of whom the proceedings relate.
b)Every person is presumed to be capable of looking after his own health and safety, managing his own affairs and making reasonable judgments in respect of matters relating to his person and his estate until the contrary is proven.
c)Orders should not be made if the needs of the person could be met by other means less restrictive of the person's freedom of decision and action.
d)A plenary guardian should not be appointed if the appointment of a limited guardian would be sufficient to meet the needs of the person concerned.
e)An order appointing a limited guardian or an administrator shall be in terms that impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
f)In considering any matter the Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, or as gathered from the person's previous actions.

Documentary material

The Tribunal had before it a number of documents provided by the parties, the most significant of which can be summarised as follows:
a)The application lodged by Mr H referred to Mr F as living alone in squalor with a psychiatric disability (schizophrenia), untreated diabetes and complications arising therefrom. It was said that he was dependent upon others for his basic needs, but that these needs were not met as he was unable to access medical treatment and his home was in an appalling state of disrepair and grossly unhygienic.
b)In a social worker guide form submitted by Mr H with the application, Mr H referred to Mr F as having significant needs and that, although they tried to provide assistance, his family was unable to cope with meeting all his needs and that Mr F was in a critical situation. Mr F was said to be currently psychiatrically stable, was not confused, but could not reasonably manage his needs or the assessment of his situation because he was visually impaired.
c)In a report dated 23 September 2009, Dr M (a consultant psychiatrist at the clinic) referred to having known Mr F for only a few months but that he had been known to the clinic for many years. He said Mr F suffered from chronic schizophrenia and impaired insight and judgment into his mental illness, as well as his multiple severe medical problems. Mr F's prognosis was said to be extremely poor because of his insulindependent diabetes with endstage chronic renal failure needing regular dialysis, and limited vision. Dr M thought that Mr F was incapable of making reasonable decisions about any matter, commenting that his health was severely compromised on a daily basis due to his visual impairment and impaired insight and judgment, and because he did not comprehend the dire risk issues involved in living on his own. Dr M commented that he thought Mr F's attendance at the hearing would be detrimental to the proceedings because Mr F is loyal to his family's involvement, but he has a history of abusive and aggressive behaviour.
d)Prior to the hearing, Mr H also provided a psychosocial assessment and report concerning Mr F. This report referred to Mr F having been diagnosed and treated for a mental illness from 1997, that he suffers from largely untreated diabetes which has resulted in amputations, he has severe peripheral neuropathy and requires dialysis three times a week, and he is severely visually impaired. The report said that Mr F is extremely socially isolated and housebound. The report also said that, although Mr F could engage with service providers, he had at times been aggressive and abusive, that he is loyal to his family and thankful for their assistance in looking after him - but it was the opinion of workers at the clinic that Mr F was vulnerable and that his basic needs were not being adequately met. Mr F's home had been assessed as being unliveable by the local authority, which had made a work order for it - but at the time of the report only limited work had been done to address these matters. The report said that Mr F's financial management was unclear and the clinic workers believed that Mr F had access to considerable savings that were not being applied to meet his needs, and there was a need for some sort of accountability and transparency in these matters because Mr F was reliant on his family for financial assistance.
Following the first hearing, the applicant provided the Tribunal with further documentary material as follows:
a)On 17 July 2009 Mr F's capacity to consent to medical and psychiatric treatment, and his capacity to function and live independently in the community, were assessed by Dr HM (another psychiatrist at the clinic) together with Dr M and other practitioners. At the time Mr F was an inpatient at the general hospital to which the clinic is attached, where he had been admitted to a medical ward for assessment regarding his ability to look after himself in the community. Mr F was said to be coherent in speech but was frustrated about being in hospital. He was not depressed or psychotic, was well oriented, was aware of his medical conditions and was accepting treatment for them. Mr F's insight regarding his mental illness was said to be impaired - in that he believed that his medication was needed because of complications related to having had meningitis in 1985 rather than because of a mental illness. Nevertheless, it was noted that Mr F had always accepted his antipsychotic medication. Dr HM thought there were risks of further deterioration in Mr F's physical state due to his erratic use of oral medication and what was said to be his inability to measure blood glucose levels due to impaired eyesight. He was also thought to be at risk in the home from such things as burning himself on a heater and at a high risk of infection through his poor care of the dialysis line. Mr F was thought to have the capacity to consent to treatment for his medical problems, but that his ability to consent to psychiatric treatment was impaired - although his willingness to accept psychiatric medication meant this was not an issue. Mr F's capacity to function, and his capacity to judge his ability to function, at home independently was thought to be impaired.
b)Dr M provided a further report dated 19 November 2009 regarding Mr F, noting that his chronic psychotic illness was currently in remission on medication. Dr M commented that Mr F's mental illness could also affect frontal lobe functioning, resulting in impaired decisionmaking and abstract thought processing, which in turn would impact on judgment - the latter also being compounded by vascular complications of his diabetic illness. Dr M again thought that Mr F was unable to make reasonable decisions about any matter, mentioning his limited vision and limited ability to tend to his activities of daily living and, in particular, his inability to manage his diabetes by injecting insulin appropriately. Dr M thought that the fact that Mr F's house was extremely poorly maintained placed into question his ability to manage his finances, noting that medical staff at the hospital had expressed the view that he was medically unfit to remain living alone, placing his life at risk by doing so.

The hearing

Mr H gave evidence that was to similar effect to the picture described in the documents referred to above. In essence, it was the treating team's concern that Mr F's health was deteriorating, to the extent that his life could be endangered, that had prompted the making of the application. It was apparent that there had been considerable conflict between the treating team and Mr F's family members in relation to how serious Mr F's circumstances were, the extent to which his care needs were being adequately met by family members, and in relation to organising care for him in his home from community organisations .
Mr SF, who has been a community mental health nurse at the clinic for many years and was involved with Mr F and his family for about 15 years until August 2009, gave evidence about his dealings with Mr F and his family over that period that was very helpful to the Tribunal.
Mr SF said that Mr F had attended the clinic for many years, always refused to see doctors, refused to accept a diagnosis of schizophrenia for the reason mentioned above - but was always willing to accept medication. Mr SF had observed Mr F's physical condition deteriorating over the years because of his failing eyesight, need for dialysis and associated renal failure. Mr F had been admitted to hospital on several occasions in an attempt to find supported accommodation for him, but he had never wanted to leave his own residence and it had never been possible for the clinic to find such accommodation, mainly because of Mr F's relatively young age.
Mr F had started dialysis in early 2009, and Mr SF thought that by mid2009 his situation had deteriorated to the point where he was at significant risk. This had resulted in the admission to the hospital in July 2009 for the assessment of his ability to continue living at home.
Mr SF said that he had always had a cordial and professional relationship with Mr F and his family. He and Mr F had often disagreed over the years about aspects of Mr F's behaviour, which Mr SF thought was due to his strong personality rather than to his mental illness. Mr F had always consistently wanted to stay in his home because he had built that home and wanted to stay there forever. Mr SF said that as Mr F's care needs had increased in recent years there had been increasing tension between Mr SF and Mr F's children because they had wanted the clinic to be more involved in providing greater support for Mr F. However, AF had become more involved and that had improved the relationship.
Evidence was given by AF, who said that although they had been divorced for a long time, she and Mr F continued to have a good relationship. AF thought that the applications made to the Tribunal were unnecessary and were due to the fact that the individuals involved with Mr F at the clinic had changed and that there had been a breakdown of communication between the team and the family. It was accepted by AF that the condition of the house in which Mr F lived (which had once been jointly owned by Mr F and AF, but his interest had been transferred to her many years ago) was not as good as it should be, but that was where he wished to live and he was living in a lifestyle that was his choice. She accepted that Mr F's overall condition had worsened when his sight deteriorated. Nevertheless, the family accepted responsibility for Mr F and provided him with food and tried to meet his other needs such as arranging for him to be transported to Royal Perth Hospital for dialysis three times a week. Both the family and the clinic had organised inhome care from different organisations and this had resulted in both organisations attending at the same time with resulting confusion about who would do what. The family had arranged for considerable work to be done on Mr F's house to satisfy the requirements of the work order made by the local government and now considered that the property was in a reasonable state.
Mr F gave evidence at both hearings in a coherent and lucid way. He made it clear that he disagreed with the diagnosis of schizophrenia, but readily acknowledged his physical illnesses. However, he maintained that his eyesight was not as bad as most people thought and he was able to demonstrate at the hearing that he had a reasonable ability to see things. He accepted that his house was not in particularly good repair, although he said that it was sufficient for his needs, particularly now that the repairs ordered by the local authority had been carried out, and he was adamant that he wanted to remain in the home for as long as he possibly could. He thought he was coping reasonably well and was getting good support from his family. He thought that he was dealing with his insulin satisfactorily. He could administer it himself, and could read the numbers and hear the clicks on the machine that regulated the amount he injected. He thought that his diabetes had been under good control in the last 12 months and his blood levels were tested three times a week at Royal Perth Hospital and there had been no problems in recent times. He had had several amputations but they were due to infections from a needle and a wire brush.
Ms Turner, representing the Public Advocate, gave evidence that she had had discussions with Mr F, his family members and personnel at the clinic, as well as inspecting for herself Mr F's living circumstances. It was apparent that the house had had work done on it in recent times and she thought that it was not in such a bad state as to be not habitable. She said that Mr F had been very clear in expressing his views about wanting to live at home with assistance from his family, who visit him regularly. He was able to give a coherent history of his family and background and was able to discuss his physical illnesses. He believed that he was able to care for himself, although he recognised there were other opinions about that. Mr F had told her (and said as much at the hearing) that he had complete faith in AF's support, including the managing of all his financial affairs.
Ms Turner said that she had spoken to the two organisations that had been organised to provide inhouse services. It seemed clear that there had been a breakdown in communication between the family and the clinic. It seemed that Mr F had declined inhouse support in the past but he was now willing to accept it and this should work in his interests. Ms Turner also said that there was clear evidence of a strong relationship between Mr F and his family and she could not support the contention that his family had not acted in his best interests, albeit in somewhat difficult circumstances due mainly to Mr F insisting on living alone for most of the time in conditions that were not ideal.

Consideration

Although Mr F does not accept it, it is clear from the medical evidence (and I accept) that it has long been considered that Mr F suffers from chronic schizophrenia. That psychiatric condition would be a mental disability for the purposes of the GA Act. It is also clear that Mr F suffers from a number of physical ailments that are serious and require regular attention.
For the purposes of an administration order, it would be necessary to establish that Mr F's mental disability impairs his ability to make reasonable judgments about his financial affairs. The evidence was that Mr F was last hospitalised for his mental illness in 1991 and that he had received regular medication since then, notwithstanding his disagreement about the diagnosis. His illness has long been described as being in remission and I was told at the second hearing that the clinic has now discharged Mr F to his general practitioner for future treatment of the mental illness. Based on that evidence, and my assessment of Mr F's evidence at the hearings, I conclude that whatever might be the true nature of Mr F's mental illness it has had little effect on his daytoday mental state and I accept Mr SF's evidence that the behavioural issues that have arisen over the years have been due mainly to Mr F's personality. I conclude that the evidence about the impact of Mr F's mental disability does not overturn the presumption that Mr F has the capacity to make reasonable judgments about his financial affairs.
However, in case I am wrong in reaching that conclusion, it seems to me that it has not been shown that Mr F is in need of an administrator.
The main reasons advanced as to why Mr F needs an administrator were that he relied on AF to manage all of his financial affairs, he had handed over ownership of the house in which he lives to AF many years ago after they separated, and he did not appear to have managed an inheritance that he received some years ago in a very wise way. Those matters do not, in my opinion, necessarily demonstrate that Mr F is unable to make reasonable judgments about his financial affairs.
I accept the evidence of Mr F and AF that he managed all his financial affairs until his eyesight failed and that he remains in control of his affairs but needs AF's help to transact matters on a daytoday basis. AF deals with his correspondence and pays his bills as needed. The fact that Mr F transferred ownership of the house to AF some years ago when they separated does not in any way demonstrate an inability to manage his affairs at the present time. In relation to the inheritance, Mr F said that he had given some of the money to AF for her and the children, some of it to his brother, and had made donations to various religious charities that he supported. It was clear that Mr F knew exactly what he had done with that money and that he understood his current financial position. None of these matters indicate that Mr F has made unreasonable decisions about his affairs. It was clear, and confirmed by Ms Turner, that Mr F has faith in AF's assistance and that otherwise Mr F is still able to determine what happens to the limited resources that are available to him. In my view the informal arrangements between Mr F and AF are such that his financial affairs are managed adequately. Even if Mr F is a person for whom an administration order could be made (which I consider not to be the case) then I consider that Mr F has no current need for an administrator.
In relation to the guardianship order application, it is clear that Mr F has multiple physical needs that require careful and constant attention. Equally, it seems that Mr F is not well placed to manage all of these matters on a daytoday basis due to his failing eyesight, very limited mobility and his general reliance on others for daytoday care, including providing food. I am satisfied that Mr F understands the nature of his illnesses and his need for treatment and that he genuinely believes that he has these matters under control. Nevertheless, it is my view that he has not always been wise in his judgments about matters relating to his person, particularly by declining inhome support in the past in circumstances where his living conditions were not good, his physical health was declining and his care needs were considerable.
In terms of s 43 of the GA Act, I am satisfied on the evidence that the presumption that Mr F is capable of looking after his own health and safety, is able to make reasonable judgments in respect of matters relating to his person, and managing his own affairs has been displaced. I consider that he is not able to look after his own health and safety and he is in need of oversight, care and control in the interests of his own health and safety. He is, therefore, a person for whom a guardianship order could be made, provided there is a present need.
It was said at the hearing by the applicant and Ms Turner that there may be a need for a guardian to make decisions in future about where Mr F should live in the longer term, on the assumption that at some time in the future it will be impossible for him to remain in his current accommodation. I accept that Mr F has very strong views about that subject and that he has in the past resisted the move to supported accommodation, despite the wishes of his family at various times although it appears that supported accommodation has not been available. It would seem likely that the circumstances might well arise that, considered objectively, Mr F should not continue to reside at home and that his best interests might at that time be served by a decision for him to move into supported accommodation. On the evidence before me, it seems clear that Mr F's unbending desire to remain living where he is is likely to get in the way of a reasoned decision about alternatives for accommodation. In my view a guardian should be appointed to make that decision.
In relation to the provision of services, I accept the evidence that at times in the past Mr F has resisted inhome care, although at the current time he is accepting the arrangements that have been made. I also accept that, in future, circumstances might again arise where he will resist care particularly if it is sought to increase the care that he needs. Again, a guardian should be appointed to be the ultimate decisionmaker about the extent of services that are to be provided to him.
In relation to medical care and treatment, the current situation is that Mr F has fairly recently been adjudged as capable of consenting to his treatment needs, there is currently no conflict as Mr F is quite willing to accept treatment, his diabetes is apparently stable, and there is no dispute about his need for antipsychotic medication. Although it is not possible to rule out that circumstances might change in future regarding medical care and treatment, I find that these informal arrangements are meeting Mr F's current needs in relation to medical care and treatment. Should Mr F lose the capacity to make such decisions in the future, then I see no reason why the provisions of s 110ZD of the GA Act could not be utilised to permit decisions to be made by one of the persons contemplated by that section to make decisions. I consider that there is no reason at this time to appoint a guardian with medical treatment decisionmaking powers.
For the reasons set out above I am satisfied that a guardian should be appointed for Mr F, with powers to make decisions in relation to accommodation and services.
The question then arises as to who should be appointed to perform that role. The applicant supports the Public Advocate being appointed, but Mr F and his family members, whilst believing that a guardian is not needed, would prefer to see AF appointed.
As noted earlier in these reasons, the Tribunal's obligation is to act in the best interests of Mr F and to ascertain his wishes as far as possible. In this case it is clear that Mr F wishes to have AF appointed as his guardian should it be necessary for an appointment to be made. Section 44 of the GA Act provides that the Tribunal should only appoint a guardian who will act in the best interests of the person, who is not in a position where his/her interests do or may conflict with the interests of the person, and who is otherwise suitable to act as the guardian.
The main objection to AF being appointed appears to be the belief that she and other family members have allowed Mr F to live in substandard accommodation and have not met his daytoday needs in other ways. I accept that Mr F has been a difficult man to deal with - both by his family and by the treating team at the clinic, and that at times it has been very difficult for the family to provide him with the level of care and support that he appears to need. However, I accept Ms Turner's assessment that it cannot be said that AF and other family members have not acted with Mr F's best interests in mind, and that they have genuinely tried to do the best for him that they possibly could. All the family members who attended the hearing demonstrated, in my opinion, a good degree of understanding of Mr F's eccentricities and his desire to be left alone to live in the way he wishes, but at the same time were also very concerned for his welfare and did their best to help him.
In my opinion it would be appropriate to place considerable weight on the clear view expressed by Mr F that AF should be appointed as his guardian. There is not, in my view, any evidence that AF would not act in Mr F's best interests. I propose to appoint AF as Mr F's limited guardian.
The final issue to be determined is when the guardianship order that I propose to make should be reviewed. It is apparent that Mr F's situation reached some kind of a crisis in 2009. Equally, it is now clear that steps have been taken to improve Mr F's living conditions and it will be important to see that these improvements are maintained and that Mr F's physical health problems remain stable. In my opinion, it would be appropriate to review the guardianship order in two years to see if circumstances remain much the same as they presently are, or whether alternative orders need to be made. It is of course possible for any interested person to apply to the Tribunal at an earlier time if it is thought that circumstances have changed to such an extent that the order should be reviewed earlier.

Order

For the reasons set out above, the orders I make are as follows:
1.The application for an administration order is dismissed.
2.AF is appointed limited guardian of Mr F with the following functions:
(a)To determine the services to which Mr F should have access; and
(b)To decide where, and with whom, Mr F is to live, whether permanently or temporarily.
3.The guardianship order is to be reviewed in two years.

I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M ALLEN, SENIOR MEMBER