DM and ML

[2014] WASAT 31

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   DM and ML [2014] WASAT 31

MEMBER:   MS L EDDY (MEMBER)

HEARD:   24 OCTOBER 2013

DELIVERED          :   19 MARCH 2014

FILE NO/S:   GAA 3746 of 2013

GAA 3837 of 2013

BETWEEN:   DM

Applicant

AND

ML
Represented Person

PUBLIC ADVOCATE
Interested Party

Catchwords:

Guardianship ­ Review of guardianship order ­ Represented person with psychiatric condition and cognitive impairment ­ Applicant seeking additional functions of guardian ­ Whether there is need for additional guardianship function

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(3), s 43(1)(b), s 84, s 87, s 87(5)(b), s 90, s 90(2), s 110ZD, Div 3, Pt 5, Pt 6

Result:

Existing guardianship order confirmed

Summary of Tribunal's decision:

The applicant, DM, sought leave to review an existing guardianship order in relation to the represented person, ML, pursuant to s 87 of the Guardianship and Administration Act 1990 (WA). DM sought the addition to the existing guardianship order of the function of making decisions regarding accommodation for ML. The existing guardianship order was made on 21 June 2013 and conferred the power on the guardian, the Public Advocate, to make treatment decisions.

The evidence accepted by the Tribunal revealed that ML has a psychiatric condition, specifically schizoaffective disorder, that impaired her thinking.  In addition, ML has a level of cognitive impairment.  The Tribunal found that the presumption of capacity is rebutted with respect to ML's ability to make reasonable decisions in relation to personal matters.

It also found that ML has made consistently high risk decisions in her decisions to return to accommodation where she is exposed to a significant risk of domestic violence.  In addition, she has consistently failed to take necessary prescribed medication for her psychiatric and physical conditions.  The Tribunal was satisfied that these factors, together with ML's psychiatric condition and cognitive impairment, meant that ML is not capable of looking after her own health and safety.

On the issue of need, the Tribunal found that there was a need for a guardianship order, but that need was limited to treatment decisions for ML.  It was determined that there was a less restrictive means of assisting ML with decision­making in relation to accommodation.

The existing guardianship order was confirmed without adding any additional function to the guardian to make accommodation decisions for ML.

Category:    B

Representation:

Counsel:

Applicant:     In Person

Represented Person       :     In Person

Interested Party             :     In Person

Solicitors:

Applicant:     N/A

Represented Person       :     N/A

Interested Party             :     N/A

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

MD [2012] WASAT 145

TR [2009] WASAT 157

REASONS FOR DECISION OF THE TRIBUNAL: 

Background

1. The represented person, ML, is a 33­year­old woman who has previously been diagnosed with schizoaffective disorder and antisocial personality disorder.

2. The original applications for appointment of a guardian and administrator for ML were lodged with the Tribunal in April 2010. After hearing those applications on 23 June 2010, Member Gillett ordered that the Public Trustee be appointed as plenary administrator of the estate of ML and the Public Advocate be appointed as limited guardian. The functions given to the guardian were to decide where ML was to live, to decide with whom ML was to live, to determine the services to which ML should have access and, subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA) (GA Act), to consent to any treatment or healthcare for ML. The administration order was to be reviewed by 23 June 2015 and the guardianship order was to be reviewed by 23 June 2013.

3. Pursuant to s 84 of the GA Act, a review of the guardianship order was heard before Senior Sessional Member James on 21 June 2013. At that time the Tribunal revoked the original guardianship order and substituted instead a more limited guardianship order (June 2013 order). In the June 2013 order, the Public Advocate was given only the power to make treatment decisions for ML.

4. In October 2013, DM (applicant), sought leave to review the June 2013 order pursuant to s 87 of the GA Act. The applicant sought the addition of the function of making decisions regarding accommodation for ML to the guardianship order. After hearing from the applicant and a consultant psychiatrist, I was satisfied that a review should be held, and granted leave pursuant to s 87(5)(b) of the GA Act on 11 October 2013.

5. At the substantive hearing of the review application, having heard from the parties and some witnesses, I made orders allowing ML's treating mental health team until 8 November 2013 to lodge with the Tribunal any further plan or submission addressing the issue of the need for more extensive guardianship powers/functions than those contained in the June 2013 order.  I also allowed the Public Advocate an opportunity to provide any response to any further material lodged by the mental health team by 22 November 2013.  Liberty was given to any interested party to apply before 28 November 2013 for a further oral hearing of the review of the June 2013 order.  Finally, subject to any person seeking a further oral hearing in accordance with the liberty given, the decision of the Tribunal was reserved.

6. No further plan or submission was received by the Tribunal from ML's treating mental health team and consequently no responsive submission was provided by the Public Advocate.

Issues

1. The powers of the Tribunal on a review of a guardianship order are specified in s 90 of the GA Act which states that:

   (1)Upon a review of a guardianship order or administration order, the State Administrative Tribunal may, as it considers necessary in the best interests of the represented person, confirm the order or by order -

   (a)amend the order so as to make any provision that may be included in a guardianship order or administration order, as the case may be;

   (b)revoke the order, or revoke the order and substitute another order for it; or

   (c)without limiting paragraphs (a) and (b) -

   i)revoke the appointment of any guardian or administrator;

   (ii)appoint a new or additional guardian or administrator;

   (iii)appoint an alternate guardian.

   (2)A review under this Part is in the State Administrative Tribunal's original jurisdiction.

2. As can be seen, s 90(2) of the GA Act provides that a review of a guardianship or administration order is in the Tribunal's original jurisdiction. In deciding whether to confirm, or alternatively, to amend or revoke a guardianship order or an administration order, regard must be had to the provisions in Pt 5 and Pt 6 of the GA Act with respect to the making of guardianship orders or administration orders. The principles stated in s 4 of the GA Act must be observed by the Tribunal in dealing with proceedings commenced under the GA Act. A review of a guardianship order or an administration order is a proceeding commenced under the GA Act.

3. It follows from this context that the hearing of a review of a guardianship order or an administration order is a hearing de novo, looking afresh at the question of whether a guardianship order or an administration order can or should be made in the particular circumstances that exist at the time of the review hearing.  This has been the approach that the Tribunal has consistently taken in the past:  see TR [2009] WASAT 157 at [7] and MD [2012] WASAT 145.

4. The issues to be determined in this review application are therefore:

   1)whether the represented person is a person for whom a guardianship order can be made (capacity); and

   2)whether there is a need for a guardianship order, including whether there is any less restrictive alternative than the making of a guardianship order.

   If these questions are answered in the affirmative, the following further issues arise:

   3)whether any order should be plenary or limited, what functions should be conferred, and what directions or conditions, if any, should be made; 

   4)who should be appointed as guardian; and

   5)the period for which any order should be made before it must be reviewed by the Tribunal.

5. In determining these issues, the Tribunal is required to have ML's best interests as its primary concern.  In addition, it is necessary to, where possible, ascertain the views and wishes of ML in relation to the matters raised by this application.

Capacity

1. The starting point for determining whether a guardianship order should be made, or should be confirmed on review, is the fundamental, but rebuttable, presumption of capacity found in s 4(3) of the GA Act. That subsection provides:

   Every person shall be presumed to be capable of -

   (a)looking after his own health and safety;

   (b)making reasonable judgments in respect of matters relating to his person;

   (c)managing his own affairs; and

   (d)making reasonable judgments in respect of matters relating to his estate,

   until the contrary is proved to the satisfaction of the State Administrative Tribunal.

2. The clarity and cogency of the evidence required to reach satisfaction, and the nature of satisfaction necessary to find that the presumption is rebutted, is affected by the seriousness of the potential consequences of such a finding in accordance with what is commonly referred to as the Briginshaw principle.

3. In this case, evidence in documentary form and by way of oral evidence was received by the Tribunal, making it necessary to determine whether the presumption is rebutted in relation to ML.

4. DD, a psychiatry registrar who was part of ML's treating team while she was hospitalised in October 2013, stated in the Tribunal's standard Doctors Guide that ML has schizoaffective disorder and mild cognitive impairment.  In that document, he also expressed the opinion that ML was not capable of making reasonable decisions about her personal healthcare, her living situation or her financial affairs.  DD also gave evidence at the hearing.  He told the Tribunal that a form of cognitive capacity testing, the Montreal Cognitive Assessment (MoCA), had been administered to ML.  He indicated that ML scored 23/30 on this assessment, with the particular results showing impairment primarily in the areas of decision­making, executive functioning and memory.  DD said that the MoCA was a 20 minute assessment and that ML was not able to maintain attention for any longer, more extensive period of time and therefore any forms of cognitive testing could not be carried out.  DD also explained his reasons for forming the opinion that ML was not capable of making reasonable decisions in relation to her personal healthcare, living situation or financial affairs.  DD said that ML's cognitive impairment, as shown by the MoCA, was part of the basis for his opinion.  However, he also said that even without this impairment, it was his view that the nature of ML's psychiatric condition was such that her decision­making was still impaired.  DD explained that ML's psychiatric disorder caused her to have trouble with her thought processes.  In particular, her schizoaffective disorder was characterised by tangential thinking, disorganised thought processes and decreased processing speed.  In his opinion, these things rendered her incapable of making reasonable decisions about her personal healthcare and her living situation.

5. The applicant, a social worker who was also part of the treating team for ML, provided a Primary Carer and Social Worker Guide to the Tribunal.  In that document, he reported that ML's long term partner had perpetrated significant physical and psychological abuse against ML over the years she had been associating with him.  In relation to ML's mental state, the applicant reported that ML 'appears confused at times and has difficulty concentrating'.  He expressed the opinion that ML's cognitive capacity had deteriorated due to her mental illness, substance use, her experience of long term physical violence and her poor diabetes management.  According to the applicant, ML has difficulty conversing sensibly at times and is impulsive and makes high risk decisions.  The applicant expressed the view that there is a need for there to be a guardian with decision­making power in relation to ML's accommodation.  The basis for this view was expressed as follows: 

   Prior to the admission [ML] was residing with [ML's partner] who has perpetrated significant long-term domestic violence against her.  In addition to physical abuse, [ML] is financially exploited and socially isolated by [ML's partner].  [ML] is highly vulnerable and it is likely her cognitive capacity has significantly deteriorated due to her mental illness, domestic violence, substance use and poor diabetic control.  [ML's] treating team maintain significant concerns around her capacity to make appropriate decisions regarding accommodation, finances and who she resides with.

6. SW, the coordinator of the community team that had been working with ML in the community for some two to three years, attended the hearing and gave evidence.  SW said he generally sees ML once a week, although sometimes less often than that.  SW told the Tribunal that sometimes ML is keen to work with the team but other times she is quite hostile.  In SW's opinion, ML has a good baseline level of cognitive capacity.  However, in SW's view, ML fluctuates a lot in her mental illness and in her diabetes control.  Her capacity is also impacted by her relationship (which also fluctuates in its effect) and by the amount of stress to which she is exposed.  SW told the Tribunal that ML's relationship with her partner puts her at risk but she chooses to go back to that relationship time after time.  SW stated that not everyone in a violent relationship needs a guardian, but ML's diagnoses and limited medication use impacts on her ability to make decisions and therefore, in his view, ML did need a guardian.

7. ML gave evidence at the hearing and said that she disagreed with the comments made (by DD, SW and the applicant).  ML did not expressly state that she considered that she had capacity to make reasonable decisions in respect of matters relating to her person.  The comments she made were focused entirely on the aspect of personal decision­making relating to accommodation decisions.  It was apparent from her statements, that she was of the view that she did not need someone to make decisions for her regarding her accommodation or any other personal matter.  I note that I found ML difficult to follow at times during the hearing because she did not talk in complete sentences and tended to change track midway through expressing a particular thought.

8. SK, the delegated guardian from the Office of the Public Advocate, said that she did not dispute that ML was a person for whom a guardianship order could be made, and in that context, I took her to mean that, in her view, at least part of the test in s 43(1)(b) of the GA Act was met. However, it was SK's view that ML did have capacity to make decisions regarding accommodation and that it was her right to make her own lifestyle choices. SK had spoken to ML's treating consultant. SK said she was told that it was the consultant's view that when ML is stable and her diabetes is under control, ML can make a contribution to her treatment. SK said that the consultant had told her that he was of the view that when ML is well, she can make decisions in relation to her accommodation. As the Tribunal is not bound by the rules of evidence, I can have some regard to the views of the consultant as reported by SK. However, as he was not present to explain his views, I have given minimal weight to those comments.

9. Based on all of this evidence, I am satisfied that the presumption of capacity is rebutted with respect to ML's ability to make reasonable decisions in relation to at least some personal matters.  ML's slow processing speed, tangential thinking and disordered thought processes, together with a reduced attention span, make her incapable of making reasonable decisions in some circumstances, and, I infer, would have a particularly significant effect where an urgent or rapid response is required. 

10. It is the case that ML has made consistently high risk decisions in her decisions to return to accommodation where she is exposed to a significant risk of domestic violence.  In addition, she has consistently failed to take necessary prescribed medication for her psychiatric and physical conditions (including her diabetes).  These factors, together with ML's psychiatric condition and cognitive impairment, cause me to be satisfied that ML is not capable of looking after her own health and safety.

Need for an order

1. SK expressed the view that, even if ML lacked capacity to make reasonable decisions about her accommodation, giving a guardian power to make these decisions would have no practical utility.  She said, 'I can make a decision about [ML], consent to alternative accommodation, but I can't make her stay there.  She consistently goes back to her partner'. 

2. While it is not necessary for my decision in this case, it does seem to me that, at least in some circumstances, the power of a guardian to make decisions concerning accommodation may include a power to make the represented person stay at that accommodation, by means of locking doors or otherwise preventing the represented person from leaving.  For example, a represented person with advanced dementia who cannot safely be on their own outside of a particular place may well be kept in a secure facility where staff will prevent the represented person from leaving the premises. 

3. In ML's case, she is not a person who is at risk when she is on her own and does not need a controlled environment in order to be kept safe.  It is only when she chooses to return to accommodation with her partner that ML is at risk.  In those circumstances, it would not be appropriate for a guardian to restrain ML in a particular place in order to ensure the guardian's accommodation decision was being complied with by ML.  There is then a real practical difficulty with enforcing any decision in relation to where ML lives if she is determined to continue to return to her partner.

4. SK stated at the hearing that she considered that rather than making ML subject to a more extended guardianship order, it was more important to support ML in the community and to put a safety plan in place.  It was, in essence, SK's view that there were less restrictive alternatives available (as opposed to resorting to a more extensive guardianship order) that could be used to assist ML.

5. Another person who gave evidence at the hearing was TB.  TB's current role was that of 'peer support' but she had known ML for approximately 10 years while working in various roles within the Health Department.  TB said she had a good relationship with ML and that ML will contact her when things were not going well.  TB expressed the view that there could have been other avenues looked at within the community to engage with ML and to build her confidence, but this had not been done.  TB said that she and ML had recently met with the family violence unit and currently a plan was being put together to assist ML.  TB noted, however, that in the past various things had been tried to assist ML with respect to domestic violence but they had not been successful.

6. In all of the circumstances, I am not satisfied that there is a need for the guardianship order to be extended to include decision­making about ML's accommodation.  I am satisfied that, at least at this point in time, there are less restrictive alternatives to the extension of the existing guardianship order.  TB and ML were working on plans involving the family violence unit, and although TB had some hesitation about the ultimate success of this based on past experiences, it may well be that these plans may assist ML to remove herself from situations where she is at risk of domestic violence.

1. Even though the application for review sought only that an additional power should be added to the existing guardianship order for ML, it is necessary to also review the existing power of the guardian to make treatment decisions for ML.

2. SK stated at the hearing that she had not been asked to make many treatment decisions for ML even though it was apparent from the information provided by the applicant that ML had had treatment for physical and mental health issues during the currency of the existing order.  This raises some concern about the potential that health practitioners who are aware that a person has a guardian with decision­making power regarding treatment may not always refer to the guardian for consent for treatment.  However, this does not render unnecessary the area of decision­making concerned.

3. ML does have ongoing health issues (both physical and mental) that require treatment on a regular basis. As I have stated above, she is not capable of looking after her own health and safety. The applicant told the Tribunal that ML's partner did not come to the hospital with her when she attended and I do not have any sufficient information to find that he is a person who is willing to make treatment decisions for ML under s 110ZD of the GA Act. Even if he were, on the information currently available to me I am not confident that it would be appropriate for ML's partner to make those decisions for her. I am not aware of any other person who would come within the criteria of s 110ZD of the GA Act so as to be able to make treatment decisions for ML under that provision. Therefore, the statutory process for alternate treatment decision­making for adults who do not have capacity to make the relevant decisions for themselves is not available in this case. I am satisfied there is a need for someone to make treatment decisions on behalf of ML and there is no less restrictive alternative available.

Other issues

1. The remaining issues can be dealt with briefly.  I am satisfied that it is necessary only to appoint a guardian with the limited function of making treatment decisions for ML.  There is no person who has put themselves forward as willing to act as ML's guardian and, as such, it is necessary that the Office of the Public Advocate take on this role.

2. The medical evidence indicates that ML's psychiatric condition and cognitive impairment are permanent in nature.  As such, it is appropriate that the Tribunal reviews the order in five years, which is the maximum allowable time.

Orders

The Tribunal declares that [ML]:

(a)is incapable of looking after her own health and safety;

(b)is unable to make reasonable judgments in respect of matters relating to her person;

(c)is in need of oversight, care or control in the interests of her own health and safety; and

(d)is in need of a guardian

and the Tribunal orders that:

1.The order is confirmed as follows:

The Public Advocate of Level 2, International House, 26 St Georges Terrace, 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 (WA), to make treatment decisions for 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 16 March 2019.

I certify that this and the preceding [32] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS L EDDY, MEMBER