DON
[2005] WASAT 193
•25 JULY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: DON [2005] WASAT 193
MEMBER: MR J MANSVELD (MEMBER)
HEARD: 8 JULY 2005
DELIVERED : 25 JULY 2005
FILE NO/S: GAA 901 of 2005
BETWEEN: DON
Represented person
Catchwords:
Guardianship - Need for a guardian - Who is the appropriate authority to consent to non psychiatric treatment for a person with a mental illness - Role of a guardian more than authoritative decision making
Legislation:
Guardianship and Administration Act 1990 (WA),
s 4, s 43, s 44, s 51, s 84, s 119
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)
Mental Health Act 1996 (WA), s 26, s 108, s 110
Result:
The plenary guardianship order is revoked and the Public Advocate appointed limited guardian
Category: B
Representation:
Counsel:
Represented person : Self-represented
Solicitors:
Represented person : Self-represented
Case(s) referred to in decision(s):
ADP [2005] WASAT 131)
Review of Guardianship and Administration Orders in respect of MM; (2001) 28 SR (WA) 320 at 330
Review of Guardianship Order for LGW, unreported; decision of the Guardianship and Administration Board (WA) delivered 7 May 2004 (Ms P Eldred, Deputy President, Ms F Child, Member and Ms H Leslie, Member)
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary
The Public Advocate was appointed limited guardian for a 42-year-old man with a diagnosis of a mental illness. The functions of the guardian were to decide where the man should live and to consent to his treatment and health care. The Public Advocate had previously been the man’s plenary guardian but upon review of the order it was considered that the limited functions mentioned were sufficient and appropriate.
The Public Advocate had submitted that the man no longer required a guardian because decisions about his accommodation and general health care were effectively made by the mental health authorities who looked after his psychiatric care.
The Tribunal found that, as the man was of a relatively young age, his accommodation needs would continue to require the assistance of a guardian who would consider his needs independently of the needs of service providers. The Tribunal also found that the Chief Psychiatrist was not the appropriate person to make general medical decisions for the man and that those decisions were best made by a guardian.
Background
These reasons relate to a periodic review, pursuant to s 84 of the Guardianship and Administration Act 1990 (WA) (the Act), of an order for guardianship made by the Guardianship and Administration Board on 4 July 2000. That order appointed the Public Advocate as plenary guardian for DON.
I am deciding this application as the relevant provisions of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) came into effect on 24 January 2005, the date from which the Tribunal took over the functions of the Board.
This matter was heard before me on 8 July 2005. Present at the hearing was PW, the Public Advocate's representative and delegated guardian for DON, and GM, DON's brotherinlaw.
Both PW and DON gave oral evidence, and PW also provided a written report.
KM is DON's sister and attorney under an enduring power of attorney. She lives outside of Australia and was unable to attend the hearing. She has provided an e-mail setting out her thoughts on the application.
Decision
I have decided to revoke the order for guardianship made on 4 July 2000 and make a new order appointing the Public Advocate as DON’s limited guardian, with the functions of deciding where and with whom he should live, and also to consent to any treatment or health care for him subject to Division 3 of Part 5 of the Act.
I will provide the reasons for my decision by firstly summarising the positions and views of the Public Advocate through her representative PW; GM, DON’s brotherinlaw, and KM, his sister. I will then discuss that evidence as I see it relating to the provisions of the Act that deal with whether DON is in need of a guardian. I will also discuss the evidence, as it relates to who can and should give consent to general medical treatment when a person is detained as an involuntary patient in an authorised hospital pursuant to the relevant provisions of the Mental Health Act 1996 (WA) (MH Act). In doing so, I will give my view on the interaction of the Act with the MH Act concerning consent to general (non-psychiatric) medical treatment.
The Public Advocate’s submission
The Public Advocate's position is that the order for guardianship is no longer of real benefit to DON and should be revoked.
It is contended that DON's circumstances are very different now to those that existed when the order for guardianship was made in 2000. At that time, he was an involuntary patient in an authorised hospital and was being detained pursuant to the provisions of the MH Act.
The mental health team had assessed that DON was no longer capable of living independently and needed supported accommodation. On that basis, the guardian consented to him being accommodated in a psychiatric hostel. DON stayed there for a month, after which he was moved to another psychiatric hostel at which he stayed until January 2005. That hostel closed and he was moved to his current hostel.
PW's evidence is that DON has settled into the current hostel without difficulty, and this has been helped by him transferring from the previous accommodation with two of his fellow residents. The two hostels have the same owners, and some of the staff members have been able to transfer with the residents.
PW states that DON's sister, KM, continues to manage his financial affairs, and that GM visits him regularly and has maintained a strong interest in his welfare. GM is DON's only visitor.
DON is said not to want to leave the hostel. He has very simple demands and has a reasonably good relationship with the staff. Over the term of the guardianship order, DON has remained in psychiatric hostels, and those facilities are the only practical accommodation option for him. If DON were to leave of his own accord and against his best interests, the guardian could not enforce his return. If the hostel were to close, there would be a "duty of care" on the part of the mental health authorities, and possibly the owners, to ensure DON had a place to live. There is, therefore, no further need for a guardian to make accommodation decisions.
DON does have medical issues. He has a mental illness of longstanding and is prescribed anti‑psychotic medication. This is given to him by hostel staff, as he does not generally accept advice or assistance from medical practitioners. A recent visit by members of the local mental health team was not successful.
Despite this, DON is said to have a reasonable relationship with Dr PF, his general practitioner. Dr PF is also a psychiatrist and works in the public health system.
DON is a heavy smoker. Dr PF would like him to have a chest x‑ray but DON has refused. A similar situation arose in 2001 when DON experienced some breathing difficulties. He refused treatment and was admitted to an authorised hospital as an involuntary patient under the MH Act, during which, investigation of his respiratory problems took place. No further treatment was required.
Prior to the guardianship order being made, DON was successfully treated for testicular cancer.
PW reports Dr PF as saying that DON would continue to refuse general medical treatment, and that if treatment is required, it could only be given by way of invoking the involuntary provisions of the MH Act. On this basis, PW reports that Dr PF agrees that the guardianship order is not effective and should not remain in place.
PW states that DON has no apparent understanding of the guardianship order and does not accept any authority that the Public Advocate has as guardian.
The legislative basis of the Public Advocate's submission is that DON is not in “need of a guardian” pursuant to s 43(1)(c) of the Act. There is another authority for treatment decisions, the Chief Psychiatrist through the provisions of the MH Act, which is more appropriate because it is effective. As for DON’s accommodation, there is no current need for a decision to be made, and if a decision is required in the future, this can be made within a “duty of care” owed to DON principally by the State mental health authorities. In any case, the guardianship order is unworkable by virtue of DON's refusal to accept the guardian's authority, and therefore the provisions of s 44(2)(d) of the Act, are not satisfied.
GM’s evidence
GM states that he visits DON regularly and remains concerned for his welfare. He feels that DON appreciates the visits but that DON would stop contact if there were any indication that GM was in a position of authority over him.
Prior to the guardianship order, DON had a history of absconding. The guardian was instrumental in ensuring that DON was not sent home from hospital in 2000, as that was the intention of DON's then treating mental health team. In the view of the guardian and GM, returning home would have been contrary to DON's best interests.
GM states that his abiding wish is that DON be protected for the remainder of his life and that he not be left to "die on the streets". His concern is that DON might choose to leave the hostel or that the hostel will close and that he will be at the mercy of others. GM sees guardianship as the only security for DON.
GM acknowledges that DON appears to be happy at the hostel and has given no indication of an intention to leave.
KM’s submission
As earlier stated in these reasons, KM is DON's sister and she currently lives overseas. She was not able to attend the hearing but sent an e‑mail to the Tribunal on 2 June 2005. I quote the relevant part:
"…My main concern is that if he does not have a guardian he will think it is okay to leave the home that he is in and this would be disastrous for him. He would no longer take his medication and end up in the psych ward. We have experienced this a number of times before. I know that he never talks to anyone from you [sic] department etc but the fact that you are there keeps him in balance a little."
Is DON in need of a guardian to make decisions about his life?
Don’s capacity
When the Guardianship and Administration Board made the guardianship order on 4 July 2000, it firstly made a finding that DON satisfied the provisions of s 43(1)(a) and s 43(1)(b) of the Act. That is, DON had attained the age of 18 years and was incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person, or was in need of oversight care and control in the interests of his own health and safety or for the protection of others.
The only medical evidence provided for the hearing of the application for review of the guardianship order is a report from Dr PF dated 27 June 2005. He states that DON suffers from paranoid schizophrenia and that, in his opinion, DON is incapable of currently making reasonable decisions in relation to his personal health care, his living situation and his financial affairs.
Dr PF's view is not in dispute. I therefore find that DON continues to satisfy the provisions of s 43(1)(a) and s 43(1)(b), and is a person for whom a guardian could be appointed.
Is Don in need of a guardian?
The Public Advocate refers to s 43(1)(c) of the Act and argues that DON is not in "need of a guardian" because, with respect to his accommodation, no further decision is necessary that could not otherwise be made in the ordinary course of his life. The Public Advocate contends that the only viable accommodation for DON is a psychiatric hostel, that in the conduct of the guardianship order, hostels have become available by the actions of mental health teams, and the guardian has consented to decisions that, in practical terms, have already been made. The concern raised by GM that DON needs someone with authority to look out for him should the current accommodation fail is opposed by the Public Advocate, who contends that, ultimately, this responsibility rests with the State through its mental health system.
With respect to DON's medical needs, the Public Advocate argues there is no "need of a guardian" because the decisions that might be required to be made are best made by use of the involuntary provisions of the MH Act which can overcome DON's refusal from time to time to accept medical intervention. This is said by PW to be supported by Dr PF.
On its face, the fact that DON satisfies the provisions of s 43(1)(b), in that he cannot make capable lifestyle decisions, would presume a legal vacuum in the decisionmaking and a need for a guardian pursuant to s 43(1)(c). However, as decided by the Full Board of the Guardianship and Administration Board in Review of Guardianship and Administration Orders in respect of MM; (2001) 28 SR (WA) 320 at 330:
"The mere fact that a person has a disability that makes him unable to make reasonable decisions does not automatically mean the person is "in need of a guardian"…Such a need might not exist under s 43(1)(c), for example, if there is some other statutory provision which gives legal authority for the decision-making in question … or if there is in fact no live issue or foreseeable conflict in relation to the personal affairs of the represented person so as to give rise to the need for this Board to intervene in the life of the represented person by making a formal order."
I do not accept the Public Advocate’s argument that DON's accommodation is no longer a "live issue" in the sense that there is no foreseeable decision to be made and, if later, a decision is required, that will most likely be one to move DON to another psychiatric hostel which can be made by the mental health authorities perhaps in consultation with GM.
DON, at 42 years of age, is a relatively young man. The evidence is that he is likely to need some form of supported accommodation for the rest of his life. It is common ground that the accommodation options for DON are very limited and to some extent tenuous given the circumstances of private community care for people with a mental illness in this State. That, to my mind, says something about the need for DON to have someone who can monitor the existing accommodation on an ongoing basis to ensure it continues to be the best available for him and to scrutinise future accommodation options which will invariably arise given his relatively young age. I have no doubt that, should the current accommodation fail, the public mental health authorities would act to find another place for DON. However, that decision may include consideration of matters that would conflict with his individual interests. DON would not be in a position to argue the merits of his needs alone as against the competing needs which make up the totality of a decision made by service providers.
I am assisted in my thinking by the reasoning in Review of Guardianship Order for LGW, Unreported; decision of the Guardianship and Administration Board delivered 7 May 2004 (Mrs P Eldred, Deputy President, Ms F Child, Member and Ms H Leslie, Member). The Board there recognised that the role of a guardian pursuant to the provisions of the Act includes not only the making of decisions but also "…acting to assert and protect the rights and interests of the [represented person] against third parties and making representations on behalf of [that] person".
This view is consistent with s 51 of the Act which speaks to a guardian’s requirement to act in the "best interests" of the person and includes acting, as far as possible, as an advocate for the person and in such a way as to protect the person from neglect, abuse or exploitation.
GM, as brother‑in‑law and friend of DON, performs a role, but I do not think it is the one I have just described. In fact, in his evidence, he is clear that his role cannot be associated with any authority lest it damage his personal relationship with DON. That would be manifestly against DON's best interests, as it would appear that GM is the only friend and visitor for DON, external to the hostel.
I therefore find that DON satisfies the provisions of s 43(1)(c) in respect of his accommodation requirements.
Once a positive finding is made under s 43(1)(c), the Act obliges me to consider whether DON's "needs" can be met in a less restrictive way than the formal appointment of a guardian (s 4(2)(c)). I have already found that leaving DON effectively in the control of the mental health system is an inadequate response to his particular needs, given his relatively young age and vulnerabilities. I have also found that the special relationship between DON and GM should be preserved, and this precludes GM from being an authority figure. On that basis, I find that DON's needs with respect to his ongoing accommodation can only be met with the appointment of a guardian, and that must be the Public Advocate pursuant to s 44(5) of the Act which states that the Public Advocate shall only be appointed when there is no other person who is suitable and willing to act.
I note the concern of GM and KM that, should a guardian not be in place, then DON might decide to leave his accommodation. I am not persuaded to that view and I have made my decision to continue with a guardian for the reasons already stated.
With respect to DON's general medical needs, the Public Advocate's view, supported by Dr PF, is that DON will consistently refuse treatment, investigative or otherwise, and if a point is reached whereby medical intervention is required, then he will need to be made an involuntary patient under the MH Act and treated according to the provisions of that Act. This has occurred in the past.
Although not stated explicitly, the Public Advocate's argument rests initially on a particular reading of s 110 of the MH Act. Section 110 provides:
"110. Medical treatment may be approved by the Chief Psychiatrist
(1)A person who is in an authorised hospital as -
(a)an involuntary patient; or
(b)a mentally impaired accused,
may be given medical treatment, other than psychiatric treatment or treatment referred to in section 108, if it has been approved in writing by the Chief Psychiatrist.
(2)Subsection (1) does not limit a power conferred by any other written law by which a person may consent to the medical treatment of another person."
Section 110(1)(a) allows a person who has been made an involuntary patient pursuant to s 26 of the MH Act to be given medical treatment, which is not psychiatric treatment, when in an authorised hospital and upon the written approval of the Chief Psychiatrist.
In the Public Advocate's submission, the MH Act is the appropriate authority under which DON should receive general medical treatment because he otherwise refuses treatment. An appointed guardian cannot force him to have treatment and is therefore redundant. In this way, DON is not in "need of a guardian" for treatment decisions pursuant to s 43(1)(c) of the Act.
I do not accept this submission, and in that regard, s 110(2) of the MH Act is critical. That subsection provides, in effect, that the process in s 110(1) by which the Chief Psychiatrist can approve treatment recognises a guardian's authority to consent, on the patient's behalf, to treatment. DON has a guardian, and, quite properly, s 110(2) currently applies. This issue was considered in Review of Guardianship Order Re MC, Unreported decision of the Guardianship and Administration Board delivered 7 May 2004 (Mrs P Eldred, Deputy President, Ms F Child, Member and Dr A McCutcheon, Member). The Board concluded:
"We consider it plain that the authority of the Chief Psychiatrist under s 110, whatever its boundaries, is not intended to override the authority of a guardian. We also consider that it is more appropriate for an independent guardian to give consent to medical treatment than for the authority to be exercised by the Chief Psychiatrist. Thus, it is clear in our view that the existence of the authority of the Chief Psychiatrist does not preclude the Board from finding that a person is in need of a guardian within the meaning of s 43(1)(c). Indeed, we consider that the authority of the Chief Psychiatrist is in fact a default provision to be used where there is no one else with legal authority to consent for persons who are incapable of giving consent for themselves."
A guardian has been appointed for DON on the basis that he, amongst other things, is incapable of making reasonable decisions about his treatment and health care. The evidence currently before me confirms the finding of that incapacity. There is consequently a legal vacuum in the decisionmaking for DON's treatment and health care that is not, in my view, overcome by the operation of s 110 of the MH Act. Other than the appointed guardian, there is noone available, under s 119 of the Act. In particular, I have already stated why GM is not suitable to be in a position of authority. For that reason DON, is in need of a guardian for consent to treatment pursuant to s 43(1)(c) of the Act and, as with accommodation, this must be the Public Advocate (s 44(5)). There is not a less restrictive way in which treatment decisions can be made (s 4(2)(c)). I have found that the use of s 110(1) in this instance not to be appropriate and subject to the need for urgent treatment (s 119 (1) and s 119(1a)), consent to any other treatment is, in my view, required (see ADP [2005] WASAT 131).
Another argument put by the Public Advocate is that the guardianship order is unworkable by virtue of DON’s refusal to accept the guardian’s authority, and therefore the provisions of s 44(2)(d) of the Act are not satisfied.
The Public Advocate's argument in respect of s 44(2)(d) is, to my view, a misreading of that section. The whole of s 44 needs to be considered to come to a proper interpretation of s 44(2)(d).
Section 44 is headed "who may be appointed guardian" and there is then set out the criteria which must be considered before a particular appointment is made. The guardian must be at least 18 years of age, and who, in the opinion of the Tribunal, will act in the persons' best interests, not be in a position of conflict of interest, and be otherwise suitable to act. Suitability to act is particularised by s 44(2) which requires the Tribunal to take into account as far as possible the desirability of preserving existing relationships within the person's family, the compatibility of the proposed appointee with the person and administrator (if any), the wishes of the person and “whether the proposed appointee will be able to perform the function vested in him” (s 44(2)(d)). The remainder of the section deals with conflict of interest in the case of a relative of the person, the fact that a guardian can also be the person's administrator and, finally, the circumstances under which the Public Advocate is appointed guardian.
In the scheme of s 44, the criterion of s 44(2)(d) is clearly an attribute of the proposed appointee and is not to do with the question of the need for an order which is determined by the operation of s 43, subject to s 4 of the Act. Section 44 instructs the Tribunal to turn its mind to certain factors which go to the question of whom to appoint as guardian. Whether the proposed guardian has the personal ability to carry out the functions ordered by the Tribunal is simply one of those factors.
The argument of the Public Advocate with respect to s 44(2)(d) of the Act fails on this point.
Order
I am satisfied on the evidence before me that there are no further functions that a guardian should be given, other than those I have considered, they being accommodation and treatment and health care. A limited guardianship order is therefore sufficient to meet the needs of DON and a plenary order is not necessary (s 4(2)(d) of the Act).
It is therefore ordered that:
1.The order for guardianship made by the Guardianship and Administration Board on 4 July 2000 be revoked and a guardianship order in the following terms be substituted for it:
2.The Public Advocate of 30 Terrace Road, East Perth, Western Australia is appointed DON's limited guardian with the following functions:
(a)To decide where the represented person is to live, whether permanently or temporarily;
(b)To decide with whom the represented person is to live;
(c)To consent to any treatment or health care of the represented person subject to Div 3 of Pt 5 of the Act;
The Tribunal will commence a review of this order by 20 July 2010.
I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, MEMBER