DL
[2007] WASAT 97
•30 APRIL 2007
DL [2007] WASAT 97
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 97 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1470/2006 | 28 SEPTEMBER 2006 20 NOVEMBER 2006 5 FEBRUARY 2007 | |
| Coram: | MS F CHILD (MEMBER) | 30/04/07 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | The Public Advocate is appointed limited guardian with functions to consent to treatment and health care | ||
| B | |||
| PDF Version |
| Parties: | DL |
Catchwords: | Guardianship and Administration Guardianship Review Need for order Represented person with acquired brain injury Family members not involved in care or in decision-making Need for guardian with authority to consent to treatment and to medication for the purposes of behavioural control or restraint |
Legislation: | Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 43(1), s 51(2)(f), s 90(1), s 119, Pt 7 Public Trustee Act 1941 (WA), s 36(c) State Administrative Tribunal Act 2004 (WA), s 78(1) |
Case References: | B v Croydon Health Authority [1995] 2 WLR 294 BTO [2004] WAGAB 2 MC [2004] WAGAB 5 MW [2005] WASAT 205 Re Application for Guardianship Order (BCB) (2002) 28 SR (WA) 338 |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : DL [2007] WASAT 97 MEMBER : MS F CHILD (MEMBER) HEARD : 28 SEPTEMBER 2006
- 20 NOVEMBER 2006
5 FEBRUARY 2007
- Represented Person
Catchwords:
Guardianship and Administration - Guardianship - Review - Need for order - Represented person with acquired brain injury - Family members not involved in care or in decision-making - Need for guardian with authority to consent to treatment and to medication for the purposes of behavioural control or restraint
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 43(1), s 51(2)(f), s 90(1), s 119, Pt 7
Public Trustee Act 1941 (WA), s 36(c)
State Administrative Tribunal Act 2004 (WA), s 78(1)
(Page 2)
Result:
The Public Advocate is appointed limited guardian with functions to consent to treatment and health care
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
B v Croydon Health Authority [1995] 2 WLR 294
BTO [2004] WAGAB 2
MC [2004] WAGAB 5
MW [2005] WASAT 205
Re Application for Guardianship Order (BCB) (2002) 28 SR (WA) 338
(Page 3)
Summary of Tribunal's decision
1 On review of a plenary guardianship order made under the Guardianship and Administration Act 1990 (WA), the State Administrative Tribunal reappointed the Public Advocate as limited guardian for a 54-year-old man with an acquired brain injury who had lived in residential care for many years. There was a continuing need, in the view of the Tribunal, for a guardian independent of service providers to consent to health care on his behalf and to determine if he should be given medication to control his behaviour.
2 The man experienced significant health problems including a history of severe head injury, epilepsy, insulin dependent diabetes, deteriorating eyesight, gait problems and other physical disabilities and had at times shown aggressive and other challenging behaviours. Both the man's parents were dead and although he had two sisters, neither were involved in his care or in decision-making about his medical treatment or other personal matters.
3 The Tribunal determined that it was in the man's best interests that decisions of this nature are made by an independent guardian. The Public Advocate was appointed with authority to consent to treatment on his behalf and to consent to the use of medication to control his behaviour, sometimes called chemical restraint, if it was necessary for his protection or the protection of others and the least restrictive means by which his aggressive behaviours could be managed.
4 The Tribunal considered that the plenary order was no longer necessary and that a limited order was sufficient to meet his needs.
Background
5 These reasons relate to a decision of the Tribunal to reappoint the Public Advocate as guardian of DL, (the represented person) and are provided pursuant to s 78(1) of the State Administrative Tribunal Act2004 (WA) at the request of a party to the proceedings, being the social worker working for the organisation providing the residential placement of the represented person.
6 The represented person is now aged 54 years and has lived in residential care for over 10 years. It is noted in several reports on the files held by the Tribunal that he suffered a head injury in a motor vehicle accident on the eve of his 17th birthday and required extensive medical
(Page 4)
- treatment and rehabilitation. He then lived with his parents until the death of his mother. His father remarried and the represented person then lived with his father and step-mother until the death of his father in 1996. He then entered residential care and has had very little contact with family members since. It is apparent from information held on the files that the represented person has two sisters, but they had not had contact with him for many years. More recently, one sister has visited the represented person at the facility where he lives.
7 The Public Advocate was first appointed limited guardian in 1999, by the Guardianship and Administration Board (the Board) following an application by the then Local Area Coordinator (LAC) of the Disability Services Commission in the country town in which he lived. The function of the appointed guardian was to consent to health care on behalf of the represented person.
8 On review, the order was revoked. A further application was made by the LAC in 2000 and the Public Advocate was appointed plenary guardian.
9 The State Administrative Tribunal took over the jurisdiction and functions of the Board from 2004. The order made in 2000 was subject to periodic review in 2005 and the order confirmed by the Tribunal on 22 September 2005 for review in one year.
The review
10 The review was heard on 28 September 2006, 20 November 2006 and 5 February 2007. The hearing was adjourned twice to allow the sister of the represented person, JD, to attend the hearing or participate by telephone. Before the final hearing date, the sister advised the social worker and the representative of the Public Advocate, the delegated guardian (the guardian), that due to demands in her own life she was not in a position to propose herself as guardian and did not wish to attend or participate in the review hearing. Each of the hearings was attended by the social worker from the represented person's residential care placement and by the guardian.
Relevant legislation and principles to be observed
11 On review of any order made under the Guardianship and Administration Act 1990 (WA) (GA Act), including periodic reviews as this one is, the Tribunal may confirm, amend or revoke an order. (See s 90(1))
(Page 5)
12 To confirm the appointment of a guardian, the Tribunal must be satisfied that the person remains a person for whom such an order can be made. The requirements of which the Tribunal must be satisfied are set out in s 43 of the GA Act.
13 Section 43(1) of the GA Act provides that where the Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made:
"(a) has attained the age of 18 years;
(b) is –
(i) incapable of looking after his own health and safety;
(ii) unable to make reasonable judgments in respect of matters relating to his person;or
(iii) in need of oversight, care or control in the interests of his own health and safety or for the protection of others; and
(c) is in need of a guardian
the Tribunal may by order declare him to be in need of a guardian and appoint someone to act in that role."
14 The principles to be observed by the Tribunal when dealing with proceedings under the GA Act are set out in s 4.
15 They are firstly, that the best interests of the represented (or proposed represented person) must be of primary concern. Secondly, every person is presumed to be capable of looking after his own safety and health; of making reasonable judgments in respect of matters relating to his person; of managing his own affairs; and of making reasonable judgments in respect of matters relating to his estate. Thirdly, a guardian or administrator shall not be appointed if the needs of the person concerned could be met by other means less restrictive of their personal freedom of decision and action. Fourthly, a plenary guardian shall not be appointed if the appointment of a limited guardian would be sufficient, in the opinion of the Tribunal, to meet the needs of the person concerned. Fifthly, an order appointing a limited guardian or an administrator shall be in terms that, in the opinion of the Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of action and decision.
(Page 6)
- Finally, the Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned.
Capacity
16 The reports before the Tribunal indicate that the represented person has a diagnosis of acquired brain injury and the Board, and later the Tribunal, determined that he was a person for whom a guardian could be appointed. On review, there is no challenge to that finding. The general practitioner describes his condition as "static" and "permanent".
17 A recent entry in the progress notes held by the accommodation service, by a psychiatrist who reviewed the represented person in March 2006, notes that the represented person sustained a severe head injury with resultant neurological and cognitive deficits consistent with the psychiatric diagnosis of "dementia due to head trauma … . Along with neurological and cognitive deficits, he had marked impairment in anger control" (original emphasis).
18 Having regard to all of the medical and other allied health reports before me, and the evidence of the social worker and the guardian, I find that all of the elements in s 43(1) of the GA Act apply to the represented person and consequently he remains a person for whom a guardian may be appointed.
Need
19 The submission of the guardian is that the needs of the represented person in relation to his accommodation have been met. He is settled in the accommodation in which he lives; it is appropriate for his needs and there are no plans to change that arrangement. The social worker supports this view.
20 In relation to services, the social worker states that a further application had been made for funding for an individual recreation plan, for more "one to one" outings, as the represented person does not enjoy or participate in group activities and so spends considerable time on his own watching television. The deterioration in his eyesight has led, according to the psychiatrist's report, to some level of frustration with this activity. The social worker advises that the represented person is not eligible for other community services. It is submitted that there is no need at present for a guardian to determine services as the options are limited so that no real choice could be exercised by the guardian.
(Page 7)
21 According to a letter to the Tribunal from the Public Trust office, the represented person's financial affairs are managed by the Public Trustee pursuant to the Public Trustee Act 1941 (WA).There is no administration order which is subject to review so that the present value of the estate of the represented person is unknown. It may be that there are some resources that may be able to be applied to his individual recreation needs. This is a matter which the guardian and the social worker may wish to explore further.
22 If additional authority is required by the guardian to obtain information about the estate from the Public Trustee, or to determine if funds can be applied to recreation needs, then it is open to the Public Advocate to apply for review of the order for inclusion of these functions in the guardianship order.
23 In relation to the need for authority to consent to medical treatment, the reports before the Tribunal show that the represented person has a complex medical history and ongoing health problems. The guardian indicates that both she and the social worker have been advised by the sister that she will not be available to consent to treatment of the represented person as his nearest relative as provided for in s 119 of the GA Act.
24 Since there is no less restrictive option, there is a need for authority to consent to medical treatment of the represented person in an appointed guardian.
25 One of the medications given to the represented person is for behavioural control or management. When used for this purpose sometimes such medication is called "chemical restraint".
It is recorded in reports before the Tribunal that there has been a history of some aggressive behaviour by the represented person. The recent review by the psychiatrist notes there have been "no major incidents the last 12 months".
26 The view of the psychiatrist, the general practitioner and the service provider is that the medication, Citalopram, to control aggressive outbursts of the represented person, is treatment and not chemical restraint.
27 A staff member of the accommodation service provider in a report prepared for the Public Advocate, dated 20 September 2006, which is
(Page 8)
- before the Tribunal states "[t]here is no restraint used and none is under consideration".
28 The guardian sought further information about the issue of "chemical restraint" from the psychiatrist who reviewed the represented person in September 2006, however he was not available. However, his views are readily able to be ascertained from the notes he made in March and September 2006. In response to questions raised about the possibility of chemical restraint, the psychiatrist notes that the medication, Citalopram, was commenced in late 2003 and is effective for impulsive aggression. The notes refer to the represented person injuring himself from anger outbursts and the additional risks he faces with his diabetes and the risk of infection from these injuries. The psychiatrist notes that the represented person has shown good response to the medication and that some research data indicates that medications of the same group "have neuro-generative effect and patients with acquired brain injury would benefit from taking it long-term". The conclusion of the report is that "chemical restraint clearly does not apply in this case".
29 Progress notes entry from September 2006 from the same psychiatrist notes that:
"[the represented person's] verbal outbursts appear understandable in reaction to frustration. I would suggest some non–pharmacological measures eg: getting a bigger TV and separation from the intrusive resident before considering an increase in his Citalopram."
30 The general practitioner gives written responses to a series of questions put by the Public Advocate about the medication Citalopram. To the question "[w]hat illnesses has [the represented person] been diagnosed with which requires the use of the medication?" the doctor responds:
"Neurodermatitis, unpredictable aggressive outbursts associated with head injury."
31 To the question, "Is this medication for behaviour management? If so, please describe the nature of the behaviours and their frequency". The response is:
"To reduce the agitation that is responsible for neurodermatitis (damage to own skin from scratching) and aggressive behaviours and threatening behaviours. And therefore to allow
(Page 9)
- [the represented person] to have a better relationship with staff residents and guests and therefore to improve the quality of his life."
32 In this case, it is acknowledged by all those involved in his care that the medication Citalopram is given to the represented person to control unpredictable aggressive outbursts and agitation which the medical evidence suggests are associated with his past head injury.
33 The question is whether the medication given to control aggressive outbursts is treatment and care within the meaning of the GA Act and if not whether the guardian requires additional authority to consent to the administration of the Citalopram.
34 "Treatment" is defined in s 3 of the GA Act as:
"… any medical, surgical, dental or related treatment or care that may lawfully be provided to a patient with the patient's consent or the consent of any person authorised by law to consent on behalf of the patient, but does not include the procedures referred to in Division 3 of Part 5."
35 Division 3 concerns procedures for sterilisation and is not relevant here.
36 The scope of the definition of "treatment" in the GA Act is very wide and has been the subject of consideration by the Tribunal and previously, the Board (see for example, Re Application for Guardianship Order (BCB) (2002) 28 SR (WA) 338, Re BTO, now reported as BTO [2004] WAGAB 2 and MC [2004] WAGAB 5 and MW [2005] WASAT 205.
37 In BCB op cit,the Board considered whether the use of medication to control behaviour could fall within the meaning of treatment under the Act. The Board concluded that whether a particular form of physical or chemical restraint would fall within the definition of treatment would depend on the purpose for its use (at 349).
38 The Board referred to the case of B vCroydon Health Authority[1995] 2 WLR 294 and noted (at 347), that:
"the English Court of Appeal, in interpreting specific statutory provisions [of the Mental Health Act 1983 (UK)] held that medical treatment is not limited to treatment to alleviate or
(Page 10)
- prevent a deterioration of a medical condition but may extend to treatment to prevent a patient from causing harm to himself or to alleviate the consequences of that condition. On this basis, it is thus arguable whether medication given to deal with behaviour problems which are the consequence of a medical condition may come within the definition of medical treatment."
39 The Board did not reach a conclusion on this question and determined that whether restraint was being used in any particular case would need to be determined on a case by case basis. In that case, the represented person suffered alcohol related dementia, had significant aggressive behaviours and the guardian was given authority to consent to medical treatment and to restraint.
40 The diagnosed condition of the represented person, in this case, is the head injury which it is understood is not "treatable" in the normal meaning of that word, rather than the extended meaning given in B vCroydon Health Authority.
41 The alleviation of the agitation which distresses the represented person and leads him to injure his arms, fits more easily into the extended notion of treatment but the prevention of the injury is a restraint of behaviour. The management of the aggressive outbursts when those outbursts are directed at others is more consistent with the restraint of those behaviours both for the protection of the represented person and those in contact with him rather than medical treatment of a condition of the represented person.
42 The health professionals indicate that the behaviour of the represented person is being managed and his aggression is being reduced and that these outcomes are in his best interests.
43 I respectfully agree with the position taken by the Board in BCB (op cit) and the view that the purpose for which a medication is used is an indication of whether it is treatment of a condition or is more properly described as being used for the purposes of behaviour management or restraint. In this case, I consider that Citalopram is chemical restraint. The word restraint is clearly contentious and its use is highly sensitive.
44 That is not to say that the medication is not appropriately prescribed and used for the represented person and that it may be in his best interests, but in the interests of transparent decision-making for him it should be identified as such.
(Page 11)
45 It may be said that the represented person's brain damage from his head injury is so pervasive that none of his behaviours are under his control, although this is not the position which appears to be advanced in this case. The suggestion by the psychiatrist of other "non-pharmacological" interventions suggests that there may be ways of managing the environment, perhaps together with the medications prescribed to reduce the represented person's aggression and agitation.
46 Since the represented person's sisters have no regular contact with him and are not involved in his care, he is dependent on the service provider to meet all his needs. There is no suggestion that the service provider does not have appropriate care arrangements in place, but there are competing interests, not the least of which is the safety of other residents and staff. In light of these "organisational imperatives", alluded to in BCB (op cit) (at 353) there is a need for a guardian independent of the health professionals and the service provider to determine whether chemical restraint is appropriate and necessary for the represented person. This is obviously something that would be done in close consultation with his doctors and the service provider, but the decision about the nature and extent of the restraint is a matter for the guardian having regard to the need to act in the least restrictive way possible, consistent with s 51(2)(f) of the GA Act.
47 The current delegated guardian submits that she has, more recently, been able to work in a cooperative way with the service provider such that there is no longer a need for a plenary order to enable the guardian to access the health records of the represented person held by the service provider as had occurred when the order was confirmed in 2005. She recommends that if an order is made that it is a limited one.
Suitable appointment
48 Since there is no other person suitable or willing to be appointed guardian for the represented person, the Public Advocate is reappointed limited guardian with the functions to consent to medical treatment and to consent to chemical restraint of the represented person.
49 As the disability of the represented person is a static one and his need for a guardian is likely to exist in the longer term a five year order is appropriate.
(Page 12)
Orders
50 On review, the order dated 22 September 2005 is revoked and a guardianship order in the following terms is substituted for it:
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) 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
(b) To consent to the use of chemical or physical restraint in respect of the represented person and to decide matters incidental thereto.
3. This order is to be reviewed by 5 February 2012.
I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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