Department Of Corrective Services and GY

[2012] WASAT 225

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   DEPARTMENT OF CORRECTIVE SERVICES and GY [2012] WASAT 225

MEMBER:   MS F CHILD (MEMBER)

HEARD:   25 JULY 2012

DELIVERED          :   25 JULY 2012

PUBLISHED           :  16 NOVEMBER 2012

FILE NO/S:   GAA 1572 of 2012

MATTER:   DEPARTMENT OF CORRECTIVE SERVICES

Applicant

AND

GY
Represented Person

Catchwords:

Guardianship and administration ­ Application for appointment of a guardian for prisoner with intellectual disability held indefinitely ­ Need for a guardian ­ Functions of a guardian ­ Advocacy ­ Appointment of Public Advocate

Legislation:

Guardianship and Administration Act 1990 (WA), s 43(1)(c), s 110ZD

Result:

Appointment of Public Advocate as guardian

Summary of Tribunal's decision:

Following an application by an employee of the Department of Corrective Services, the Tribunal appointed the Public Advocate as the limited guardian of a man with an intellectual disability who had been in custody for over 25 years.  Planning for the man's release had stalled and, because of the operation of the various legislative regimes, the Tribunal was told he was not eligible for re­socialisation programs within the prison.  The man had a potential appeal against a decision of the Prisoners Review Board of Western Australia, and an application had been made to the High Court for leave to appeal his sentence out of time.
The Tribunal determined that the man needed a guardian because he was unable to understand or respond to legal processes in which he was engaged.  There was also need for someone, external to the Department, to advocate for him in any pre­release planning process.
Although the man wanted his friend to be his guardian, this was not supported by his sister, the applicant or the Public Advocate.  The Tribunal determined that the friend was not suitable, in the man's circumstances, to be the guardian, because it accepted the applicant's submission that informed high level advocacy was needed. The Tribunal found that the level of advocacy required knowledge and expertise not available in the general community.  Planning for the man's release  included the need for recognition and management of any potential risks to the community.

Category:    B

Representation:

Counsel:

Applicant:     Disability Services Coordinator

Represented Person       :     Ms Shelvaniagam

Solicitors:

Applicant:     Department of Corrective Services

Represented Person       :     Mental Health Law Centre

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

CEF [2010] WASAT 54

Department of Corrective Services and AP [2011] WASAT 213

LGW (2004) WAGAB 4

REASONS FOR DECISION OF THE TRIBUNAL: 

Introduction

1. An application for the appointment of a guardian for the represented person was filed with the Tribunal on 8 May 2012 by the Disability Services Coordinator of the Department of Corrective Services (DCS or applicant). The application sought the appointment of the Public Advocate as guardian for the represented person, who is a man of 52 years and who has been in prison for over 25 years.  The man has an intellectual disability and is registered as a client of the Disability Services Commission (DSC).

2. The hearing of the application was held in Perth on 25 July 2012.  The represented person participated by video conferencing from the Bunbury Regional Prison, together with the Assistant Superintendent and the Post Management Coordinator of the Bunbury Regional Prison.  Attending the hearing in Perth was a representative from the Mental Health Law Service for the represented person (counsel), a representative of the Public Advocate, (Public Advocate) a friend of the represented person, Ms AP, who proposed herself as guardian, and the applicant.  A representative of DSC attended as an observer.

3. The application was determined on the day of the hearing.  The Tribunal appointed the Public Advocate as limited guardian with review of the order in one year.

4. The Tribunal's oral reasons, delivered at the conclusion of the hearing, have been taken from the transcript of the hearing and edited for clarity and to remove identifying information.  Those reasons were as follows.

Is the represented person someone for whom a guardian may be appointed?

1. The Tribunal considered the material put with the application and the submission, and other material put by the Public Advocate, including the report from the Assistant Superintendent of Bunbury Regional Prison, and reports going back some years from the DCS' file, Graylands Hospital, and the Clinical Psychologist of the Sex Offenders Team.  It is noted that the reports are from 1989 and 1993 and, as such, are quite dated.

2. There are reports from Dr SC, a general practitioner.  Her report dated 17 January 2012 refers to the represented person having '[i]ntellectual impairment, borderline intellectual functioning and personality dysfunction'.  She refers to the reports that are before the Tribunal and which are referred to above.  Her opinion is that the represented person is unable to make decisions about his personal health care, his living situation or his financial matters.  She says he requires management of behaviour issues with sedative type agents.

3. All of the material before the Tribunal notes that the represented person has an intellectual disability.  There are also some references to a psychiatric diagnosis in some of the material.  The represented person is registered with DSC.  As the applicant states, although assessments may or may not have been undertaken in the represented person's case, registration with DSC indicates that a person registered has recognised impairments of their cognition and their functioning.

4. In the hearing, the parties referred to the represented person as not understanding material that was put to him.  That is very relevant to the position that he is in.  He has been described as impulsive and vulnerable.  He is said to be vulnerable both to physical and sexual assault and to sexual exploitation.

5. As to the question of whether the represented person is a person for whom a guardian can be appointed, I accept the submission of the Public Advocate that the represented person is a person for whom a guardianship order can be made.

6. I find that the represented person is incapable of looking after his own health and safety, is unable to make reasonable judgments in respect of matters relating to his person and is in need of oversight and care or control in the interests of his own health and safety or for the protection of others.

7. This is the finding, although I appreciate the point that the Public Advocate is making that, in fact, oversight care and control are provided to the represented person as a prisoner within the prison system.

8. I do find the represented person is a person for whom a guardianship order can be made.

Is the represented person in need of a guardian?

1. In respect of the question of the need of the represented person for a guardian in his current circumstances, and noting the Public Advocate's submission that the need for a guardian is associated with the need for a decision­maker for the represented person, the position taken in the past by the Guardianship Board, and subsequently by the Tribunal, is that the question of need, in s 43(1)(c) of the Guardianship and Administration Act 1990 (WA) (GA Act), is not limited to the need for an authoritative decision­maker: see LGW(2004) WAGAB 4 (LGW) and, more recently, CEF[2010] WASAT 54 and Department of Corrective Services and AP [2011] WASAT 213 (the case to which the Public Advocate referred in the hearing).

2. The Board said in LGW that, to find that there was a need for a guardian, there must 'be some issue that requires the Board to intervene to vest someone with clear legal authority in respect of matters relating to the represented person's person'.  The decision goes on to say:

   This will often be the need for a decision to be made with legal authority but in an appropriate case can involve other functions within the compass of parental responsibility even though the ultimate authority to make a particular decision lies in the hands of another.

3. This decision related to a person who was subject to the Mentally Impaired Defendants Review Board, as it was then.

4. The position on the facts of this case is that there is a clear need for a guardian in respect of the legal issues identified by the applicant, the Public Advocate, Ms AP (the represented person's friend) and by counsel in relation to the questions that face the represented person.

5. As the Public Advocate put it in summary form at the end of the hearing, the represented person has an intellectual disability and he is imprisoned on an indefinite basis.  There are legal processes, both current or potential, to be made on his behalf which might address that issue.  There is a potential appeal from the recent decision of the Prisoners Review Board of Western Australia.  There is an application for leave to the High Court to seek leave to appeal his sentence out of time.  There is the potential involvement of the represented person in the Innocence Project.  Arising from the material before me in relation to alleged assaults on the represented person, it appears that he may have a potential claim for criminal injuries compensation.

6. All parties agree that the represented person is not in a position to advance his interests in relation to the legal proceedings or processes.  Both the applicant and the other representatives from the DCS indicate that there is a need for an external advocate to reinitiate the process of pre­release planning for the represented person.  I accept that efforts have gone into that process in the past, but that the process has stalled because of changes in the legislation.  I accept the applicant's position that a high level advocacy is now required to reinitiate that process for the represented person.

7. These issues show a clear need for a guardian with the requisite legal authority to speak for the represented person in respect of those processes.

8. In relation to the question of medical treatment, there is little material before the Tribunal on this point.  References have been made to the need for dental treatment and to medication that the represented person has daily.  Dr SC's report refers to sedation for behavioural management.

9. The point put by the Public Advocate is that, in fact, DCS is responsible for the health, safety and welfare of the represented person while he is in custody.  This position is accepted.

10. The issue remains, though, that a prisoner retains the ability to consent to or refuse medical treatment within certain circumstances within the prison system.  The absence of capacity to consent to medical treatment on the part of the prisoner might give rise to the need for a guardian to consent to medical treatment on that prisoner's behalf.  There is a limited amount of material before me regarding the represented person's capacity in this sphere, but I accept, on the evidence, that in relation to the represented person's intellectual disability, he is a person who is not able to consent to more complex medical treatment, such as medication that is sedating in nature.

11. There is a potentially less restrictive alternative to the appointment of a guardian for treatment decisions under the GA Act The GA Act provides for consent to treatment being obtained for an incapable patient, pursuant to s 110ZD. I do not think that provides a ready answer to the question of who could be a consent giver for the represented person. The represented person's mother is his nearest relative, for the purposes of s 110ZD, but she is in residential care with a diagnosis of cognitive impairment of her own; she is not, therefore, a person who is able to act on behalf of the represented person regarding consent to treatment. The next in the hierarchy is the sister of the represented person. But again, as the legislative regime requires that there be frequent personal contact, his sister may not fit easily into that category either. Ms AP is a regular visitor and she may be a person who could be a consent giver, but it appears that this is not supported by the represented person's sister or by DCS.

12. Given this, it is appropriate that medical treatment authority is given to the Public Advocate as guardian, and it will be a matter for the Public Advocate to explore whether there are less restrictive alternatives available for the represented person and put that back to the Tribunal when the matter is reviewed.

13. The other complicating issue is whether there is a consent required if the represented person is subject to chemical restraint.  The issue arises as to whether consent is required for any restraint used, or whether such restraint is incidental to his imprisonment.  That will be a question that needs to be considered and it indicates a need for advocacy in relation to that matter.  It would be an obligation of the guardian acting in the best interests of the represented person to advocate that the least restrictive option should be pursued in any restraint used.

14. The other issue identified was the development of a pre­release plan and the need for involvement of the represented person, or of someone standing in the shoes of the represented person, to present his views and interests to that process.  Other organisations party to that process will have their views, but it is important that someone independent of the DCS should speak with the represented person's voice in that setting to advance his interests.

Plenary or limited order

1. I accept the submission of the Mental Health Law Centre, that the question of accommodation will be part of the development of any pre­release plan.  But, equally, I accept the Public Advocate's submission that the point has not yet been reached where that is a real question that needs to be addressed by a guardian.  However, if I am wrong about that, an early review of the order could be sought by the Public Advocate to include accommodation decision­making in the functions given to the appointed guardian.

2. I considered whether, in all of the circumstances of the represented person, a plenary order should be made.  It is not certain to me what the scope of the authority required will be, and whether it could be a significant problem if there was any delay or any ambiguity as to who had authority to speak on behalf of the represented person.  That might stall the process or limit the effectiveness of a guardian in dealing with the departments involved.  So, I considered making a plenary order, but I am satisfied that, in the present circumstances of the represented person, his needs can be met by a limited order, and the GA Act provides that if I am satisfied about that, I should not make a plenary order.

Suitable appointment of a guardian

1. The real question is who should be appointed as the guardian of the represented person.  Ms AP proposes herself for appointment and the applicant proposes the Public Advocate.

2. In relation to Ms AP, I accept the submissions of counsel that it has been through Ms AP's advocacy that this process for the appointment of a guardian for the represented person has been initiated by DCS.  Ms AP has been a regular visitor to him in the prison, and she has been a strong supporter of him.  She proposes herself as guardian and that is the expressed wish of the represented person; he said this in the hearing.

3. I have no doubt about Ms AP's commitment to the represented person.  I think she has shown her commitment through her efforts on his behalf.  I think in the time that she has known him, she has tried to advance his interests.  However, having said that, I do not consider that, in the current circumstances of the represented person, she is suitable for appointment as guardian, despite the wishes of the represented person.  That is not to say that I am not satisfied that she is not committed to his best interests.  What I do mean is that I accept the submission of the applicant that, in the current circumstances of the represented person, his situation is complicated by his status as a prisoner with an indefinite sentence.  He is held at the Governor's pleasure.  The complexities associated with that and the fact that he has been in custody for nearly 26 years, as the Public Advocate points out, indicates that this is not a simple problem.  Efforts have been made, internally and externally, to achieve his release and that has not occurred.

4. I accept what the applicant is saying about the need for highly sensitive, complex negotiations and advocacy at a very senior level to advance the represented person's interests in relation to the release planning.  She described it as 'highly informed' advocacy.  This is not just in relation to the legislative arrangements, the interplay between the various legislative regimes and the legislation under which the represented person comes before the Prisoners Review Board of Western Australia, but is also in relation to the advocacy that is required before the Board and to the Attorney General.  The complexities in the funding arrangements between DSC and DCS will also require a degree of knowledge and expertise in the appointed guardian that is not available in the general community.

5. Ms AP, herself, acknowledges that she does not understand all the Acts and the interplay of the Acts which are relevant in the represented person's circumstances.  That is not a criticism of her, because this is a highly complex issue and, as counsel has said, Ms AP has advanced the position significantly with little training and few resources at her disposal, and has been able to achieve some outcomes for the represented person.

6. I consider that it is in the best interests of the represented person that I appoint the Public Advocate who has the expertise and experience and the resources in her office to advocate at a very high level for the represented person in respect of his custody.  The Public Advocate is independent of DCS.  In Ms AP's submission to the Tribunal, she opposes the appointment of DCS as the guardian.  That sort of appointment would not be made, as it would be a conflict of interest that is not permitted under the legislation.

7. The Public Advocate is appointed because the Public Advocate is independent of these organisations, and acts for the represented person in his best interests.

8. I appreciate the concern expressed by Ms AP about the problems of bureaucracy, and I think that was acknowledged by the Public Advocate in saying that it is not the role of the Public Advocate, as guardian, to visit the represented person.  That is not the role that that office would play.  The role of the guardian is in the advocacy, negotiations and representations, made on behalf of the represented person at the various legal and other administrative processes, to try to effect his release and to ensure appropriate services are in place on his release.  The other significant aspect is that the Public Advocate will bring to the table the expertise developed in relation to, and knowledge of, the services which the represented person will need in the community on his release and an appreciation of the need for those services.  The Public Advocate is also familiar with the processes by which they should be engaged.

Scope and length of the order

1. There is the issue of the scope of the order.  I will make the limited order, despite my concerns that any ambiguity might cause a delay for the represented person, and I accept that the order should not be a long one because there will be a need to reassess what authorities are required by the guardian, and if the guardian does require further authorities in relation to accommodation, should the process for pre­release planning have got to that point.  That could happen earlier if there is a need.

2. In terms of the terms of the order, I will include the functions to conduct legal proceedings on behalf of the represented person, to be involved in the pre­release planning process, including advocacy about funding arrangements, and to seek and obtain the release of relevant reports made to the Prisoners Review Board of Western Australia or any other documents held by the DCS relative to the development of a pre­release plan.

1. I will include the restraint function in the functions given to the guardian, despite what I consider a difficulty the Public Advocate may face in dealing with that issue with DCS.  I do not think the Public Advocate could decide, as guardian, that the represented person should be restrained if the prison authority said that he should not be, or vice versa.  The attitude of DCS may be that restraint is an incidence of the represented person's incarceration and that it falls within the authority of the prison service.

2. However, giving the Public Advocate the function to explore less restrictive forms of restraint is indicated here, because the medication given to the represented person, referred to in a very early report from Graylands Hospital, is a major antipsychotic.  A psychiatric review of that medication would be in the best interests of the represented person.

3. The function to determine services to which the represented person should have access is also included.

4. The order is to be reviewed in one year, but could be reviewed earlier on application.

Orders

1.Public Advocate, 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 seek legal advice and representation on behalf of the represented person as is necessary and to advocate generally for him in respect of current or future proceedings in the High Court of Australia and before the Prisoners Review Board of Western Australia;

(b)to make enquiries on behalf of the represented person in respect of any participation he may have in the Innocence Project and to act on his behalf and to advocate for his best interests in respect of that participation;

(c)to make enquiries of and to seek legal advice and representation on behalf of the represented person in respect of any injuries sustained by him as a result of alleged assaults on him while in custody;

(d)to act on behalf of the represented person and to make representations on his behalf to the Department of Corrective Services and the Disability Services Commission in respect of pre­release planning, funding proposals, future accommodation and services;

(e)to make enquiries and representations on behalf of the represented person regarding access to services for assessment or treatment of the represented person and to consent to those services as required;

(f)to act on behalf of the represented person in respect of access to reports, assessments and correspondence put before the Prisoners Review Board and to take all steps necessary to obtain access to the material submitted to the Board by the Department of Corrective Services, the Disability Services Commission or any other government department or service provider for the purposes of advocacy before the Prisoners Review Board or in the exercise of any function provided for in this order;

(g)to investigate the current medical and health care needs of the represented person and to make treatment decisions on behalf of the represented person as necessary; and

(h)to investigate whether the represented person is subject to chemical restraint and to advocate in respect of that matter to advance the best interests 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.This order is to be reviewed by 25 July 2013.

I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS F CHILD, MEMBER