DRL
[2014] WASAT 63
•3 JUNE 2014
DRL [2014] WASAT 63
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 63 | |
| 03/06/2014 | |||
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:3706/2013 | 16 OCTOBER 2013 | |
| Coram: | MR J MANSVELD (SENIOR MEMBER) | 16/10/13 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Guardianship and administration orders made | ||
| B | |||
| PDF Version |
| Parties: | DRL |
Catchwords: | Guardianship and administration Capacity Communication difficulties Need for orders |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4(2), s 41(3)(a), s 43, s 44, s 51, s 64(1)(a), s 64(1)(b), s 68, s 70(e), Div 3, Pt 5 |
Case References: | Nil |
Summary | Applications for guardianship and administration orders were made for a young woman who had recently reached 18 years of age.,The woman suffered from severe cerebral palsy which impacted on her intellectual functioning and communication abilities.,The woman had had a difficult social and educational background.,The application for a guardianship order arose from the need to make an important medical decision.,The Tribunal found that although the woman was able to decide and communicate basic matters, it was beyond her abilities to make decisions about her complex health needs. Moreover, because of her communication difficulties, the woman was at risk of her views being misunderstood.,The Tribunal decided to appoint a guardian to make the woman's treatment decisions and an administrator to manage her small estate. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : DRL [2014] WASAT 63 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : 16 OCTOBER 2013 DELIVERED : 16 OCTOBER 2013 PUBLISHED : 3 JUNE 2014 FILE NO/S : GAA 3706 of 2013 MATTER : DRL
- Represented person
Catchwords:
Guardianship and administration Capacity Communication difficulties Need for orders
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 41(3)(a), s 43, s 44, s 51, s 64(1)(a), s 64(1)(b), s 68, s 70(e), Div 3, Pt 5
Result:
Guardianship and administration orders made
Summary of Tribunal's decision:
Applications for guardianship and administration orders were made for a young woman who had recently reached 18 years of age.
The woman suffered from severe cerebral palsy which impacted on her intellectual functioning and communication abilities.
The woman had had a difficult social and educational background.
The application for a guardianship order arose from the need to make an important medical decision.
The Tribunal found that although the woman was able to decide and communicate basic matters, it was beyond her abilities to make decisions about her complex health needs. Moreover, because of her communication difficulties, the woman was at risk of her views being misunderstood.
The Tribunal decided to appoint a guardian to make the woman's treatment decisions and an administrator to manage her small estate.
Category: B
Representation:
Counsel:
Represented person : N/A
Solicitors:
Represented person : N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
1 DRL (represented person) is an 18 year old young woman with severe cerebral palsy. She requires fulltime assistance with all her daily needs.
2 Because of her significant movement disorder the represented person has required complex medical intervention in order to reduce the severity of her uncontrolled movements.
3 The represented person's condition has also resulted in difficulties with swallowing which has worsened over time. At the time of the hearing she had in place a nasogastric tube to assist in receiving the required nutrition and hydration.
4 It is the view of her medical team that the represented person requires the placement of a permanent gastrostomy feeding tube (PEG).
5 The represented person has had a difficult family history. She has the support of some family, particularly a grandmother and aunt. Unfortunately the relationship with her mother has been fraught as has been the relationship between the mother and the treating team such that contact had been effectively lost with the mother.
6 The represented person wants the PEG procedure to be done but the question raised in the application is whether she has the capacity to give consent to the procedure and if not who should be appointed as her guardian to do so.
7 The application also asks the Tribunal to consider whether the represented person is in need of an administrator to manage and make decisions in respect to her estate.
8 The hearing of the applications was attended by:
• The represented person;
• DB, applicant (Child and Adolescent Health Service);
• PC, grandmother;
• AL, aunt;
• AA, carer;
• Dr MB, Paediatric Rehabilitation Fellow (Rehabilitation Team);
• Dr JM, Clinical Neuropsychologist, Department of Paediatric Medicine;
• BW, acting manager, accommodation provider; and
• JC, representative of the Public Advocate (Public Advocate)
Decision of the Tribunal
9 At the conclusion of the hearing it was decided that the Public Advocate should be appointed the represented person's limited guardian to make treatment decisions and that the Public Trustee should be appointed as her plenary administrator.
10 The following are the reasons for those decisions.
The relevant legislation
11 The relevant legislation is the Guardianship and Administration Act 1990 (WA) (GA Act).
12 The GA Act requires the Tribunal to proceed through a number of steps in order to arrive at a decision about whether to appoint a guardian and administrator for the represented person.
13 A finding must first be made about her capacity. The starting point is that she is presumed to be able to look after her own health and safety or make reasonable judgements about her person and is able to make reasonable judgments about her estate (s 4(2)(b), s 43(1)(b) and s 64(1)(a) of the GA Act).
14 The Tribunal must be further satisfied that there is a need for a guardian and administrator to be appointed. Orders should not be made if the represented person's needs can be met by other means less restrictive of her freedom of decision and action (s 4(2)(c), s 43(1)(c) and s 64(1)(b) of the GA Act).
15 If guardianship and administration orders are made the Tribunal must decide what should be the scope of those orders. If the represented person's personal needs can be met by the making of a limited guardianship order then a plenary order should not be made (s 4(2)(d) of the GA Act). There is no such statutory restriction for administration orders although any limited order made should reflect the needs of the person (s 4(2)(e) of the GA Act).
16 If a guardianship order is made then the Tribunal must decide who the guardian is to be. Section 44 of the GA Act provides guidance to the Tribunal in the answer to that question. The Tribunal must be satisfied that the proposed guardian will act in the represented person's best interests; not be in a position where the proposed guardian's interests conflict or may conflict with her interests and that the person otherwise be suitable to act as guardian. Suitability takes into account the desirability of preserving existing family relationships; the compatibility of the proposed guardian with the represented person and the person's administrator; the represented person's wishes and whether the proposed guardian will be able to perform the role that he or she is given. Much the same requirements apply for the appointment of an administrator although it is not expressly provided for the Tribunal to consider a conflict of interest that a proposed appointee may have with the interests of represented person (s 68 of the GA Act).
17 The Public Advocate is able to be appointed represented person's guardian if it is determined by the Tribunal that there is no one else suitable or willing to undertake that role. The Public Trustee consents to his appointment as administrator should the Tribunal similarly find that no other person is suitable or willing to be appointed to that role.
18 When going through all the steps just mentioned the Tribunal must as far as possible seek to ascertain the represented person's views and wishes but ultimately must make a decision in what the Tribunal determines to be in her best interests.
The represented person's capacity
19 I am satisfied from the fact of the represented person's severe physically disabilities and the need for her to have twenty-four hour care that she is incapable of looking after her own health and safety and that she was in need of oversight and care in the interests of her own health and safety (s 43(1)(b)(i) and (iii) of the GA Act).
20 On that finding alone and if need could be established, a guardian could be appointed for the represented person. However, the principal question before the Tribunal as raised by the guardianship application, is whether the represented person is able to make reasonable judgments about the ongoing medical care she requires and in particular whether she is able to make a reasonable judgment about the proposed PEG procedure which she has stated that she wants (s 43(1)(b)(ii) of the GA Act).
21 This question is made difficult because of the represented person's significant communication difficulties.
22 The Tribunal has had the benefit of hearing from specialist medical and allied health practitioners and from those persons who know the represented well from working with her and helping meet her extensive care needs.
23 Dr JM conducted a neuropsychological assessment for the sole reason of providing an objective measure of the represented person's cognitive abilities and also to comment upon her ability to engage in discussion with regards to her medical care, living arrangements and financial needs.
24 The report of that assessment, dated 14 August 2013, is before the Tribunal. The report is detailed and traces the history of opinion of the represented person's intellectual functioning. There are opinions expressed in her extensive medical files that she has been able to adequately communicate with staff on issues to do with her care needs using a variety of communication aids. It is reported that she received intensive speech pathology in late 2012.
25 Dr JM notes that these assessments do not comment on the represented person's ability to independently reason on issues presented to her.
26 Dr JM's report states that the represented person attended school although her schooling was consistently interrupted as a consequence of her complex medical needs. The teacher and principal at her most recent school felt that the represented person is capable of making her own decisions and reflecting on decision making but that she is impressionable and vulnerable to manipulation and at risk of making decisions to please others. There is also the observation from the teacher that the represented person appears not to understand the idea of money and the value of items.
27 Dr JM spoke with the represented person's community advocate who stated that her experience is that the represented person does not initiate the topics of conversation and wonders whether her responses are the product of other peoples' thoughts and deliberations.
28 From his testing Dr JM assessed that the represented person's core intellectual abilities are within the 'Extremely Low to Borderline' range with 'Borderline-level' abilities on measures of receptive vocabulary. She is assessed as being concrete in her reasoning and with markedly reduced functioning of reasoning across verbal and nonverbal domains. Taken together with her limited education and difficult personal history, Dr JM concludes that the represented person's cognitive abilities are '... likely to be consistently well below that expected from healthy people her age'.
29 Dr JM adds that making judgments on subjective questions such as accommodation and health requires significant qualitative reasoning which is affected by an emotional vulnerability arising out of social pressure, a concern that has been expressed about the represented person. He also questions the represented person's ability to maintain a decision, something which is also affected by the limitations with her communication which also affects her ability to communicate the complexity of her care needs to others.
30 Dr JM assesses the represented person as having some further limited ability to learn but that is dependent on her communication fluency. He recommends that she be provided with 'independent assisted decision-making around life issues', and that she not be excluded from decisions that affect her life.
31 In his oral evidence Dr JM states that in the assessment process the represented person struggled with tasks requiring her to demonstrate an understanding of what others are saying (receptive vocabulary). He states:
I think that if a lot of ... the information was presented in a very unlimited fashion that she would still struggle with the more complex aspects of that decision. I think that she would understand and be able to communicate on the basic concepts of it and ha[ve] a reasonable grasp of the implications of it. But I would question her ability to comprehend the longer term implications and what it may – what types of decision may mean for her lifestyle moving forward. (T:12; 16.10.13)
32 Dr JM assesses the represented person as having a very limited capacity to comprehend in depth the potential adverse effects of surgery and to weigh the pros and cons of the surgical risk.
33 Dr JM also agrees with the assertion that because having the PEG will allow the represented person to be discharged from hospital to her home, that is a strong motivator for her to agree to the surgery in the context of her impaired ability to take into account the longer term impact of the procedure.
34 The represented person's aunt, AL, submits that the represented person agreeing to the PEG in order to return home is a decision most people would make in light of the alternative which would be to spend long periods in hospital. AL states that in her experience the represented person does not perform well under pressure or in a situation in which she is being tested and that it is then difficult to obtain a 'concrete answer'. AL believes that the represented person's communication skills have improved and that further improvement can occur with different types of tutoring. AL states:
Because I think - concerning her own medical issues, I think she is very in tune with that. But as far as things like administrative, it maybe best in the hands of a Public Trustee, because again, limited knowledge on financial details, perhaps that could be improved, but, you know, that should be externally handled. But personal issues, yes, she does need support, as in an advocate to find the right people to get the information to make an informed decision. (T:21; 16.10.13)
35 She further states:
I think that she is getting there, but I do think that perhaps she would need a guardian for a short time to ensure that that was the case. (T:23; 16.10.13)
36 Dr MB submits that the represented person has not until now needed to make treatment decisions as these have been consented to primarily by her mother. She states that apart from the PEG there is likely to be the need for considerations of complex medical intervention in the future.
37 Dr MB submits that the represented person is very vulnerable because interpreting her communication is subjective and is dependent on who is with her. It is the concern of Dr MB that the represented person's wishes could be misunderstood or misconstrued.
38 DB, the applicant, states that the time is near when the represented person's medical needs will need to be managed by the adult health care system and that will be a major transition in respect to the decision-making environment and the represented person will be away from those people who currently have an understanding of her background. She says that over the previous two years or so the represented person has been extremely unwell and this has required difficult interventions which has entailed an extensive effort on the part of the hospital staff to obtain consent.
39 The represented person's carer, AA, states:
I think that [the represented person] is very intelligent and very good at making decisions. I think that when she goes into adult life and into the hospital where they don't know her as well, it's going to very complicated for her to make complete, concise decisions where there are strange people ... I have been in the hospital a lot with her and I am so familiar with the doctors I trust them very much, so if they say something that [the represented person] needs, I agree with them, but I'm not saying that if she goes into the adult world, into the adult hospitals and there's a doctor I'm not too sure about, you know, like for [the represented person] I think it's a lot about if she trusts them. If they believe it's right, then she will go with them, but if it's a doctor that she mightn't trust, she mightn't go with them for the reason that she mightn't like them … (T:26; 16.10.13)
40 AA submits that the represented person does want the PEG and understands the need for it but that she might need some help with 'guardianship'.
41 The represented person, in communicating through her carer, AA, states that she can understand the long-term effects of the PEG. She believes she can make most of her own decisions; AA stating:
I think it's very similar to what the doctor was saying about the – you know, if that was possible where it was kind of a joint decision-making process, you know. I know that you're not offering that, but I think that's what she means is, you know, where there's big, big things like this PEG where, you know, she may need someone beside her to help her, you know, really see straight, like to really, you know, second guess her when no one else is, kind of thing, for them (sic) kind of decisions, maybe have someone else there, but I think – is that what – for most cases she wants to be able to make her own decisions. (T:17; 16.10.13)
The guardianship decision
42 I am satisfied that the represented person is unable to make reasonable judgments about her treatment decisions and that it is in her best interests that a guardian be appointed to make those decisions. I have come to that view for the following reasons.
43 I accept the assessment of the represented person's cognitive abilities undertaken by the clinical neuropsychologist, Dr JM. As already stated, the assessment was comprehensive, relying not only on formal testing but also on an investigation of medical and school records and discussions with relevant people. Even if I accept that the represented person finds formal testing difficult as is the view of her aunt, I am satisfied that Dr JM considered all the information available to him to arrive at his conclusion.
44 I find on the evidence that the represented person has compromised intellectual functioning and this manifests in a reduced ability to take in and manipulate all of the necessary information to come to an informed view of her complex medical needs.
45 I accept that the represented person is able to understand the basic elements of her treatment and that she is able generally to communicate this to people that know her well and have an appreciation of her communication difficulties such as her aunt and carer. However her treatment needs are not simple and decisions around her medical condition have both short-term and long-term implications for her health. The PEG procedure is such a decision.
46 I am satisfied that because of her compromised cognitive functioning (described by Dr JM as consistently below that expected from people her age), the represented person cannot fully understand the complicated aspects of her treatment. For the same reason I accept the view of Dr JM that the represented person is likely to overemphasise the short-term considerations of treatment decisions (for example, the PEG procedure will allow her to be discharged from hospital).
47 Although the represented person can communicate some of her needs and wishes to people who have learnt her style of communication (and this no doubt takes time and trust), I am satisfied that she is vulnerable to being misunderstood and that this risk of misunderstanding is aggravated when faced with new people and situations placing decision-making demands upon her. This is likely to occur as the represented person moves to the adult health system.
48 In making these findings I do not want to suggest that the represented person cannot or should not have input in the decision making around her health. A submission made by Dr JM and supported by the other parties is that the represented person would benefit from being assisted in the decisions that need to be made for her.
49 In that regard I draw the parties' attention to s 51 of the GA Act which sets out in a non-exhaustive way the things a guardian must do to come to a decision in a person's best interests. They include that the guardian must act in such a way as to encourage and assist the represented person to become capable of caring for herself and of making reasonable judgments about personal matters; in consultation with the represented person, taking into account, as far as possible, her wishes as expressed, in whatever manner, or as gathered from her previous actions and to act in a manner that is least restrictive of her rights, while consistent with her proper protection (s 51(c), s 51(e) and s 51(f) of the GA Act).
50 Having said that, it is of course still the responsibility of the guardian to make treatment decisions for the represented person.
51 The submissions as to who should be appointed as the represented person's guardian centres on her difficult family history and the likely tensions that will arise with the represented person's mother should a family member be appointed. The aunt, AL, accepts this to be the case and in different circumstances she would propose herself as guardian.
52 It is clear wish of the represented person that an independent guardian be appointed. There is general agreement such an appointment would be in her best interests.
53 I accept those submissions and appoint the Public Advocate as the represented person's limited guardian to make her treatment decisions.
54 There has been no other need identified or proposed on the evidence before me.
55 I have decided to set the review of the guardianship order at three years in the prospect of the represented person's continuing education and communication training.
The administration application
56 I am satisfied on the evidence that the represented person is a person for whom an administrator could be appointed. She has a cognitive impairment as a consequence of her cerebral palsy and Dr JM reports that the teacher at her former school advises that she does not appear to understand the concept of money and the value of items.
57 It appears that the represented person has not managed her own limited finances which has been undertaken mainly by her mother although BW, acting manager of the accommodation provider, states that the represented person's school holds a key card for a bank account into which it is thought the represented person's disability support pension is paid. BW suspects that the bank account has accumulated funds of about $6,000.
58 The represented person receives funding support from the Disability Services Commission.
59 It is common ground that she is in need of an administrator to secure her finances and to pay for her daily living requirements.
60 All the parties present at the hearing support the appointment of the Public Trustee.
61 I am satisfied that it is in the represented person's best interests that the Public Trustee be appointed her plenary administrator. I have provided for an amount of up to $400 per annum for the administrator to make gifts on behalf of the represented person and she should be consulted in the making of those gifts (s 70(e) of the GA Act).
62 Consistent with the term of the guardianship order I will set the review of the administration order in three years.
Orders
On the application for the appointment of a guardian for the represented person, Tribunal orders that:
1. The time for service of notice of the application is shortened pursuant to s 41(3)(a) of the Guardianship and Administration Act 1990 (WA).
2. 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 function:
(a) Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person.
3. 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.
4. This order is to be reviewed by 16 October 2016.
On the application for the appointment of an administrator for the represented person, Tribunal orders that:
1. The time for service of notice of the application is shortened pursuant to s 41(3)(a) of the Guardianship and Administration Act 1990 (WA).
2. The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
3. The administrator is authorised to expend up to a total amount of $400 per annum on gifts on behalf of the represented person.
4. This order is to be reviewed by 16 October 2016.
I certify that this and the preceding [62] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER
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