FZ
[2007] WASAT 308
•30 NOVEMBER 2007
FZ [2007] WASAT 308
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 308 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1622/2007 | 16 OCTOBER 2007 | |
| Coram: | MS D DEAN (MEMBER) | 29/11/07 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Administration application is dismissed Public Advocate appointed limited guardian | ||
| B | |||
| PDF Version |
| Parties: | KB FZ |
Catchwords: | Guardianship and administration No need for an administration order as a suitable less restrictive alternative is operating in the represented person's best interests Need for a limited guardianship order Conflict of interest |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 43, s 64, s 119 |
Case References: | Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : FZ [2007] WASAT 308 MEMBER : MS D DEAN (MEMBER) HEARD : 16 OCTOBER 2007 DELIVERED : 30 NOVEMBER 2007 FILE NO/S : GAA 1622 of 2007 BETWEEN : FZ
- Represented Person
KB
Applicant
Catchwords:
Guardianship and administration No need for an administration order as a suitable less restrictive alternative is operating in the represented person's best interests - Need for a limited guardianship order - Conflict of interest
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 43, s 64, s 119
Result:
Administration application is dismissed
Public Advocate appointed limited guardian
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Selfrepresented
Represented Person : Selfrepresented
Solicitors:
Applicant : Self-represented
Represented Person : Self-represented
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 The represented person had chronic schizophrenia and was a long-term resident (32 years) of a psychiatric hostel. He had no family in Australia. He was hospitalised as the result of a motor vehicle accident with injuries requiring surgery, which he refused. The hospital social worker made applications to the Tribunal for guardianship and administration. Prior to the applications being heard, the represented person was discharged from hospital back to the psychiatric hostel.
2 Evidence was provided at the hearing that the psychiatric hostel had been managing the represented person's money for many years. The Tribunal was satisfied on the evidence provided that this arrangement was working in the best interests of the represented person and was a suitable less restrictive alternative to the appointment of an administrator. The application for administration was therefore dismissed on the basis that there was no need for an order.
3 The represented person was on long-term medication for his schizophrenia and pain medication for injuries from the motor vehicle accident. The Tribunal appointed the Public Advocate limited guardian to make medical treatment decisions as there was no other person suitable or willing to take on the role of decision-maker.
Background
4 Applications were made to the Tribunal by a hospital social worker for guardianship and administration orders for the represented person who has a diagnosis of schizophrenia and is a long-term (32 years) resident of a psychiatric hostel. The represented person was admitted to hospital as the result of a motor vehicle accident which left him with multiple injuries requiring hospital treatment and rehabilitation.
5 At the time of the application it appeared that the represented person was unlikely to recover to the point that he would be able to return to live at the psychiatric hostel. Prior to the hearing, the applicant applied for a withdrawal of the applications for guardianship and administration as the represented person had recovered well enough to return to live at the psychiatric hostel and, in her view, there was no longer any need for orders to be made. The applicant reported that the hostel had been managing the represented person's money for the last 30 years and would continue to do so without the need for an administration order. The
(Page 4)
- Tribunal dismissed the applications for withdrawal on the basis that the evidence available to the Tribunal at that point indicated that there may be a need for one or both orders and that it was in the best interests of the represented person that the matters proceed to a hearing where the issue of need could be determined.
Evidence provided to the Tribunal prior to the hearing
6 The following evidence was provided to the Tribunal prior to the hearing:
• A written application and a report from the applicant in which she stated that the represented person has a psychiatric illness and, prior to admission to hospital as a result of a motor vehicle accident, was a long-term resident of a psychiatric hostel. The represented person is from Yugoslavia and has no contact with his family, all of whom live in Yugoslavia. He has limited understanding of English. He appears confused, is not oriented to time and to some extent, place. He refused surgery for injuries received in the motor vehicle accident which had resulted in his hospitalisation and, as a result, the surgery did not proceed.
• Dr C, hospital medical officer, reported that the represented person has a diagnosis of schizophrenia which is being treated with Olanzapine. Dr C assessed the represented person as incapable of making reasonable decisions in respect of his personal health care, living situation and financial affairs and further assessed him as incapable of executing an enduring power of attorney.
• Dr M, psychiatrist, reported that the represented person has a diagnosis of schizophrenia with cognitive impairment. Dr M assessed the represented person as incapable of making reasonable judgments in relation to his personal health care stating that he is "unable to understand the extent of his injuries or what is required for treatment". Dr M also assessed the represented person as incapable of making reasonable judgments in respect of his living situation. She advised she is unsure about the represented person's capacity to make reasonable decisions in relation to his financial affairs because she has "not specifically asked him about financial issues (however, extrapolating from decisions about other aspects it would be unlikely he could make financial decisions)". Dr M assessed the represented person as incapable of executing an enduring power of attorney.
(Page 5)
- • Dr W, psychiatrist, reported that the represented person has a diagnosis of "schizophrenia with secondary cognitive impairment" which is "not likely to improve". Dr W assessed the represented person as incapable of making reasonable decisions in respect of any major aspect of his life or finances. Dr W further reported that "severe thought disorder make[s] communication almost impossible. Use of several interpreters was reported not to have made a difference". The problem with interpreters was confirmed by the applicant at the hearing who reported that when interpreters were used, the represented person became "quite paranoid".
• Hospital discharge summary.
Hearing
7 The hearing was attended by the applicant, JB who is the manager of the psychiatric hostel where the represented person has been a resident for 32 years, and two representatives of the Office of the Public Advocate (OPA). The applicant and JB attended by telephone.
8 The applicant explained that she had made the application for guardianship when it was thought that the represented person would not be returning to the psychiatric hostel. At that time, it was thought that alternative accommodation would need to be sought for him. In addition to the need for a decision-maker in respect of his accommodation, the applicant submitted that a guardian was needed to make medical decisions for the represented person.
9 Evidence was provided at the hearing that the represented person is, and has been for some time, on medication to treat his psychiatric illness, and more recently, medications for pain relief for the shoulder injury he sustained in the motor vehicle accident.
10 JB said that now that the represented person is again living at the psychiatric hostel, she could see no need for a guardian as the accommodation was permanent and she and the treating psychiatrist make the medical treatment decisions for him.
11 JB proposed to the Tribunal that the represented person is able to make some basic decisions for himself in relation to his medical treatment citing the fact that he requests pain relief medication when he experiences pain. OPA advised that although the represented person may be able to make some very basic decisions in that he can recognise when he is in pain and that there is medication that will relieve the pain, he may not
(Page 6)
- fully understand that there are different types of medications available; there may be possible side effects from the medications and that there may be alternative treatments available. This is consistent with the assessment of Dr M who found the represented person to be incapable of understanding the extent of his injuries or appropriate treatment.
12 OPA referred to the refusal by the represented person to have what was considered necessary surgery in relation to his motor vehicle accident. She said that a guardian would have looked at the options and made an informed decision in relation to the need for surgery. Similarly a guardian could, in consultation with the treating team, review the ongoing medications and any need for changes in the medication regime.
13 In respect of the application for administration, the Tribunal heard evidence that the psychiatric hostel has been managing the represented person's money for many years. His pension is paid directly to the hostel. Board and lodgings, which includes a sum for the funeral fund, moneys for haircuts, pharmacy expenses and clothes, is retained by the hostel, the remainder of the pension is given to the represented person as a weekly allowance. He spends this allowance as he wishes. If the board and lodging money is insufficient to meet all the represented person's expenses the hostel pays the difference on his behalf.
14 OPA proposed that the current system of financial management is working in the best interests of the represented person and as such, is an appropriate less restrictive alternative to the appointment of an administrator.
Legislation
15 The principles to be observed by the Tribunal when making determinations in relation to guardianship and administration applications are set out in s 4(2) of the Guardianship and Administration Act 1990 (WA) (GA Act).
16 These principles are:
"(a) The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(b) Every person shall be presumed to be capable of -
(i) looking after his own health and safety;
- (ii) making reasonable judgments in respect of matters relating to his person;
(iii) managing his own affairs;and
(iv) making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
- (c) A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(d) A plenary guardian shall not be appointed under [s] 43(1) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(e) An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(f) In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions."
17 Section 43 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:
(Page 8)
- "(1) …
(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 the person to be in need of a guardian … "
18 Section 64 of the GA Act provides for the appointment of an administrator:
"(1) Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under [s] 40 -
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b) is in need of an administrator of his estate … "
20 Section 119(3) of the Act provides a hierarchy of persons who may consent to the medical and dental treatment of a person who is unable to consent on their own behalf. If a person is available in this hierarchy this may be a suitable less restrictive alternative to appointing a guardian to make medical decisions on behalf of the person.
(Page 9)
- "(1) If in the opinion of a practitioner a person presented to him for treatment -
(a) is in need of urgent treatment;
(b) is incapable of consenting to the proposed treatment; and
(c) is at the time of presentation a person for whom a guardian could be appointed under this Act,
the practitioner may provide the treatment if the person referred to in subsection (3) consents to it.
(1a) A practitioner may provide treatment under subsection (1) without the consent of the person referred to in subsection (3) if in the opinion of the practitioner it is not practicable to obtain that consent.
(2) If in the opinion of a practitioner a person presented to him for treatment -
(a) is in need of treatment that is not urgent treatment;
(b) is incapable of consenting to the proposed treatment; and
(c) is at the time of presentation a person for whom a guardian could be appointed under this Act,
the practitioner may provide the treatment if the person referred to in subsection (3) consents to it.
(3) For the purposes of subsections (1) and (2), the person who may consent to treatment is the first in order of priority of the following persons -
(a) a guardian of the person needing the treatment;
(b) the spouse or de facto partner of the person needing the treatment;
(c) a person who, on a regular basis, provides or arranges for domestic services and support to the person needing the treatment but does not receive remuneration for doing so;
- (d) a person who is the nearest relative (other than the spouse or de facto partner) of the person needing the treatment and who maintains a close personal relationship with the person needing the treatment;
(e) any other person who maintains a close personal relationship with the person needing treatment; or
(f) a person prescribed in the regulations.
- (3a) For the purposes of subsection (3) a person is to be regarded as maintaining a close personal relationship with the person needing the treatment if the relationship is maintained through frequent personal contact and a personal interest in the welfare of the person needing the treatment.
(4) In this section -
'practitioner' in relation to medical treatment means a medical practitioner within the meaning of the Medical Act 1894, and in relation to dental treatment means a dentist registered under the Dental Act 1939; and
'urgent treatment' means treatment that in the opinion of the practitioner concerned is urgently needed —
(a) to save the life of the person needing the treatment;
(b) to prevent serious damage to the health of the person needing the treatment; or
(c) to prevent the person needing the treatment from suffering or continuing to suffer significant pain or distress."
21 Although there are slightly different requirements to be satisfied in making guardianship and administration orders, both depend on evidence in relation to the represented person's capacity to make reasonable judgments in relation to lifestyle and financial matters.
(Page 11)
Capacity
22 With regard to the represented person's capacity to make reasonable judgments in relation to lifestyle and financial matters, the Tribunal carefully considered the evidence provided in the written reports and the evidence provided at the hearing.
23 The Tribunal accepted the evidence provided by the medical and paramedical professionals that the represented person has a longstanding diagnosis of schizophrenia "with cognitive impairment"; his condition is static with no likelihood of improvement over time and that he is not capable of making reasonable decisions in respect of his health or lifestyle.
24 Similarly, all the professional reports, with the exception of Dr M, assessed the represented person as incapable of making reasonable judgments in respect of his financial affairs. Dr M said she is "unsure" of the represented person's capacity to make reasonable judgments in relation to financial matters because she has not specifically assessed his ability in this regard, however, she qualified this with the comment "extrapolating from decisions about other aspects of his life it would be unlikely he could make financial decisions".
25 The Tribunal considered the evidence provided by the hostel manager that the represented person has the capacity to make reasonable decisions for himself in respect of his medical treatment because he requests pain medication when he is in pain. The Tribunal finds that evidence provided at the hearing and in the medical and para-medical reports clearly indicates that the represented person is not capable of understanding the complexity of decision-making required in respect of treatment options for his medical conditions.
26 The Tribunal finds, from the evidence provided in the written reports and at the hearing, that the represented person does not have the capacity to make reasonable decisions for himself in respect of his lifestyle or finances and is therefore a person for whom both guardianship and administration orders can be made.
Need
27 Having found the represented person lacking in capacity, the Tribunal must then address the issue of the need for the orders.
28 In relation to the need for an administrator to be appointed to make financial decisions on behalf of the represented person, the Tribunal is
(Page 12)
- satisfied from the evidence provided at the hearing that the psychiatric hostel is, and has been, managing the represented person's finances for many years in a manner that provides adequately for all his needs. The Tribunal considered the potential for a conflict of interest in this arrangement but finds, on the evidence provided, that the current arrangement is an appropriate less restrictive alternative to making an administration order as it meets the needs of the represented person and is consistent with s 4 of the GA Act in that it is less restrictive of his freedom of decision and action.
29 In assessing the need for a guardianship order, the Tribunal must take into account the fact that the represented person has a long-term psychiatric illness for which he requires ongoing medication and medical monitoring. In addition, he has injuries from his recent motor vehicle accident which currently, and possibly permanently, require pain management.
30 The hostel manager gave evidence that she, in consultation with the treating doctor, makes medical decisions for the represented person. The Tribunal considered whether she may, because of her long association with the represented person fit under s 119(3)(e) as a person who maintains a close personal relationship with him and would therefore be able to continue in the role of decision-maker in this regard.
31 After considering the benefits of the less restrictive alternative to the making of a guardianship order offered by s 119 of the GA Act, the Tribunal found that it is in the best interests of the represented person that a formal appointment is made. Given the dual role of the hostel manager, of friend and professional service provider, there is a potential conflict of interest in balancing the needs of the represented person with those of the hostel if she continues in her role of medical decision-maker. The Tribunal is of the view that an independent person/guardian is in a better position to objectively assess and decide on appropriate medical treatment options for the represented person.
32 The Tribunal finds that the represented person is in need of a formally appointed independent decision-maker to ensure that he receives the most appropriate medical treatment to suit his needs.
Wishes of the represented person
33 Where possible, the Tribunal takes into account the wishes of the represented person when making decisions about appointments. In this case, the represented person did not attend the hearing and the Tribunal
(Page 13)
- was given no indication what his wishes about these matters might be. The Tribunal was advised that it was not possible to obtain a view from the represented person without an interpreter but the use of interpreters in the past has further compounded the represented person's paranoia.
Best interests of the represented person
34 Evidence was provided to the Tribunal that financial and lifestyle decisions have, for many years, been made by others on behalf of the represented person, making it unlikely that he will ever take on the decision-making role again for himself in the future.
35 The Tribunal finds that the current financial management arrangement whereby the psychiatric hostel manages his finances is working in the best interests of the represented person and it is therefore not necessary to further remove his freedom of decision and action by appointing an administrator.
36 The Tribunal finds that, although medical and dental treatment decisions have historically been made for the represented person by the medical treating team and the hostel manager, given the potential for a conflict of interest in this arrangement, it is in his best interests that these decisions be made by an independent third party. As the represented person has no suitable friends, and all his family are overseas and have no contact with him, the Tribunal finds that the Public Advocate is the most appropriate appointment.
Decision
37 The Tribunal considered all the evidence available prior to and at the hearing and is satisfied that the represented person is a person for whom orders can be made. The Tribunal further finds that it is in the represented person's best interests that a guardianship order be made but found that the current informal management of the represented person's finances by the psychiatric hostel is an appropriate, less restrictive alternative to making an order.
Orders
38 The Tribunal made the following orders at the hearing:
Administration
1. The administration application is dismissed.
(Page 14)
- Guardianship
1. The Public Advocate be appointed limited guardian of the represented person with the following function:
Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to consent to any treatment or health care of the represented person.
2. The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee in the Office of the Public Advocate.
3. This order is to be reviewed by October 2012.
I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D DEAN, MEMBER
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