GT and TC
[2008] WASAT 225
•25 SEPTEMBER 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: GT and TC [2008] WASAT 225
MEMBER: MR M ALLEN (SENIOR MEMBER)
HEARD: 20 MAY 2008
DELIVERED : 25 SEPTEMBER 2008
FILE NO/S: GAA 707 of 2008
BETWEEN: GT
Applicant
AND
TC
Represented Person
Catchwords:
Guardian and administration - Application for guardianship order - Proposed represented person having high care needs and conflict between him and his carers - Proposed represented person not accepting medical treatment and other care - Finding that proposed represented person is unable to look after his own health and safety, is unable to make reasonable judgments in respect of matters relating to his person, and is in need of oversight, care or control in the interests of his own health and safety - Consideration of role of guardian beyond formal decisionmaking - Finding that the proposed represented person needs a guardian who can make decisions on his behalf about medical care and treatment, but who can also provide advocacy and representation services on behalf of the proposed represented person
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 43, s 43(1), s 43(1)(b), s 43(1)(c), s 44, s 44(2), s 44(5), s 97
Result:
Guardianship order made
Category: B
Representation:
Counsel:
Applicant: Self-represented
Represented Person : Self-represented
Solicitors:
Applicant: N/A
Represented Person : N/A
Case(s) referred to in decision(s):
LGW [2004] WAGAB 4
LJH [2007] WASAT 139
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Tribunal was asked to appoint a guardian for a severely disabled man with high level care needs. The proposed represented person requires 24hour care in supported accommodation and considerable conflict has arisen between him and his carers relating to his care and medical treatment. The proposed represented person wished to remain as independent as possible and was not willing or able to accept the point of view of his carers that his health and wellbeing was placed at considerable risk by his refusal to accept treatment and care in the manner that the carers thought appropriate and necessary.
The Tribunal concluded that the proposed represented person was incapable of looking after his own health and safety, was unable to make reasonable judgments in respect of matters relating to his person, and was in need of oversight care and control in the interests of his own health and safety.
The Tribunal considered that a guardian needed to be appointed to make decisions about and give consent for any medical treatment that the proposed represented person may require.
In addition, the Tribunal considered the role of a guardian, noting two alternative approaches. One approach involves a guardian being only a substituted decisionmaker, and the other involves a guardian being, in addition to that, a person who has a broader responsibility for the care and general wellbeing of the represented person. The Tribunal considered the latter approach to be the one contemplated by the Guardianship and Administration Act 1990 (WA).
The Tribunal concluded that the proposed represented person in this case required a guardian who could advocate generally on behalf of the represented person in relation to all matters concerning his accommodation, care and wellbeing.
The Tribunal considered whether the roles referred to above could be performed by the proposed represented person's sister, who lives interstate, and concluded that although the sister was otherwise a suitable person to be appointed, the roles contemplated by the orders to be made require a guardian to be resident in Western Australia. Accordingly, the Tribunal ordered that the Public Advocate be appointed as guardian with powers of consenting to treatment and health care and to advocate generally. The guardian was directed to liaise with the siblings of the proposed represented person to the fullest extent possible.
Background
TC is a 51yearold man who has, for about 10 years, lived in supported accommodation operated by the Centre for Cerebral Palsy (CCP) because of his high level care needs as a result of several strokes suffered in the early 1990s. He had previously spent several years living in a hospital environment.
Applications for the appointment of an administrator to manage TC's financial affairs were made in 1994 (by TC's sister, Ms C) and in 1997 (by the Public Trustee at the request of the hospital in which TC was then living) to the former Guardianship and Administration Board. The 1994 application was withdrawn and the 1997 application was dismissed, apparently because it was considered on both occasions that less restrictive means of managing TC's financial affairs were available.
In March 2008 GT, who is a manager for community living for the CCP, applied to the Tribunal for a guardianship order in respect of TC under the provisions of the Guardianship and Administration Act1990 (WA) (GA Act). The matter was heard on 20 May 2008 and the hearing was attended by TC, GT, Ms M (who is the Manager of Clinical Services for the CCP), Ms E (who is the supervisor of residency for CCP), and Ms F (an officer of the Public Advocate). Ms C participated in the hearing by telephone from interstate.
At the conclusion of the hearing I announced my decision on the application and stated briefly my reasons for doing so. The Public Advocate subsequently requested a statement of reasons for the decision and this statement is provided accordingly.
The orders that were made at the conclusion of the hearing were as follows:
1.The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road East Perth, Western Australia be appointed limited guardian of the represented person with the following functions:
(a)Subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA), to consent to any treatment or health care of the represented person; and
(b)To advocate generally on behalf of the represented person in relation to all matters concerning his accommodation, care and well being.
2.The guardian is directed to liaise with the siblings of the represented person to the fullest extent possible in relation to the performance of the guardian's functions.
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 20 May 2010.
The issues to be determined
The preconditions for the making of a guardianship order are set out in s 43(1) of the GA Act, which relevantly provides that the Tribunal may appoint a guardian for a person if it is satisfied that the person concerned:
(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 …
In exercising its powers in proceedings of this kind the Tribunal must observe the principles set out in s 4(2) of the GA Act, which require the Tribunal to have as its primary concern the best interests of TC; to presume that TC is capable of the matters referred to in s 43(1)(b) of the GA Act until the contrary is proved to the Tribunal's satisfaction; to not make orders if the needs of TC could be met by other means less restrictive of his freedom of decision and action; to make any orders in terms that impose the least restrictions possible in the circumstances on TC's freedom of decision and action; and to, as far as possible, seek to ascertain the views and the wishes of TC.
There is no dispute that TC has attained the age of 18 years.
Section 43(1)(b) 'Capacity'
In his application GT referred to TC's disability making him noncompliant with treatment required for his care and at times verbally and physically abusive to the staff providing his care; and that his behaviour, as a result of his disability, is now impacting on his welfare and putting his health at risk.
In a report provided to the Tribunal dated 20 March 2008, Ms M referred to TC's acquired brain injury and associated intellectual disability, his volatile and often abusive behaviour, his difficulties in communicating and becoming abusive if care staff are not able to understand him, and to his distorted decisionmaking that impedes staff delivering optimal care to him. Ms M noted that TC's only outside contact is his sister, Ms C, who visits only infrequently because she lives interstate, and that he does not have a good relationship with other family members due to his often abusive behaviour.
Dr F, a general practitioner, provided two reports to the Tribunal. The first, dated 13 March 2008, referred to TC having been a patient of Dr F for 10 years and stated that 'it has now reached the stage where his welfare is being compromised by his general mental attitude of noncompliance …'. In the second report, dated 4 April 2008, Dr F expressed the opinion that TC was incapable of making reasonable decisions now in relation to his living situation and his financial affairs, but he was not sure whether he was incapable in relation to his personal health care. However, but Dr F noted that TC refused to have medical care on most occasions.
The Tribunal referred the application to the Public Advocate pursuant to s 97 of the GA Act, requesting that the Public Advocate attend the hearing and provide a written report on a number of specified aspects of the matter. In a report dated 13 May 2008 an officer of the Public Advocate, Ms F, reported on her investigation, including her interview with TC. That report noted TC's desire to have as much independence as possible despite his dependence on care staff and TC's belief that his concerns may not be adequately considered. TC is aware that CCP management and staff have raised concerns about his welfare but he believes that his issues are of equal importance. The report noted that TC frequently refused to see his general practitioner and that he had refused all neuroscience testing for many years. The report summarised the Public Advocate's view that it was not clear whether TC lacked capacity for decisionmaking in relation to his health and safety and that a current need for a guardian seemed to relate to issues about compliance with medical treatment and cooperation with staff.
At the hearing GT said that TC's physical problems are such that he is immobile and requires 24hour care by a team of carers and allied health workers, such as physiotherapists and nurses. Over the last year or so a number of health issues have arisen for TC and at times TC is in conflict with the carers and professionals who wish to deliver a type and level of care that is appropriate for TC's needs. He refuses to accept such care on many occasions. TC has a very strong opinion about carers and there have been significant incidents in which TC has verbally abused carers, often on a racial basis. There is a particular concern in relation to pressure sores in view of TC's immobility. He presently has one pressure sore that is not treated appropriately and his skin is in great danger of breaking down. He frequently refuses to allow carers to clean his soiled clothes or to otherwise treat his skin. In particular, he often wishes to remain in his wheelchair rather than return to his bed, which is often needed to relieve the pressure on his skin. This is a source of considerable conflict. Overall, TC's carers wish to provide a level of care that is appropriate for TC's needs and in his best interests but TC refuses that care frequently and at times engages in behaviour that places his health, safety and wellbeing at risk. If TC's carers cannot provide what they believe is an appropriate form and level of care then at some time in the future the question may arise as to whether TC should remain living in the CCP accommodation, but noone wants to focus on that at the present time.
Ms M said at the hearing that TC's frontal lobe injury affects his personality and the way that he processes information, and his decisionmaking ability is impaired as a consequence. Ms M said that she believes that TC can process information reasonably well if given the right information, in the right way and by the right person at the right time. She believed that the appointment of a guardian would help in the process of giving TC information, as well as helping to make sure that TC's point of view was put clearly to the care staff. She was not sure that TC had the ability to weigh up information and make informed choices about his needs.
Although TC has great difficulty in speaking, he is able to make himself understood most of the time, although at times during the hearing Ms E and other CCP officers, who are familiar with TC, were able to interpret his statements.
TC made it clear that he does become very frustrated at times because he thinks that some carers have not looked after him properly and because he thinks his wishes are not sufficiently taken into account by his current carers. He referred on a number of occasions to things that had happened in the past. He said he has difficulty accepting the way he is and he does not want to be forced to do anything that he does not want to do. He said that he is well aware of the risks to his skin from pressure sores but he believes that, because he has suffered from skin breaks for many years, he can make decisions for himself and cope. He would not accept the proposition that there were times when he needed to stay in his bed (rather than sit in his chair) because that was an appropriate way of relieving pressure on his skin. He said that he thought it was illegal for him to be put back into bed and he commented that he would not stay at the CPP centre even if he was given a large amount of money.
For the purposes of s 43 of the GA Act it is not necessary to show that the preconditions for the making of a guardianship order are due to any mental or other disability. However, in TC's case it is clear that he has been profoundly impaired in a physical sense by his medical history and also that his cognitive abilities have been impaired. It is also clear, and I so find, that TC has very firm views about his current living circumstances and a very highly developed sense of frustration about what he thinks is wrong with his circumstances. At the same time, TC displayed at the hearing a considerable lack of insight into his needs. Although he recognises his dependence upon others, he was not prepared to accept that those who care for him are trying to achieve the best outcomes for him. His rigid belief that he is the best person to make decisions about his own health and welfare means that he is not capable of weighing up in a reasonable way the information he is given by his carers about his care needs and the risks that he faces. This is amply demonstrated by his unwillingness to return to his bed at times, his refusal to have his clothes and bed clothes changed when soiled despite the obvious risk of infection and his refusal to see his general practitioner and accept treatment considered appropriate for him.
In the circumstances, I am satisfied that TC is a person who is incapable of looking after his own health and safety, is unable to make reasonable judgments in respect of matters relating to his person, and is in need of oversight care and control in the interests of his own health and safety.
Section 43(1)(c) 'Need'
GT, Ms M, Ms E and Ms C agreed that TC had a need for a person who could make decisions and give consent for any medical treatment that TC may require. I agree with that assessment because of the evidence outlined above regarding TC's inability and unwillingness to even contemplate that he has an ongoing need for care and medical treatment.
A more problematic issue, which was discussed at length at the hearing, was whether TC also had a need for a person to act as a general advocate on his behalf. Ms M, as noted above, saw this role as being one of making sure that TC understood all of the concerns of his carers and their opinions about what care and treatment was appropriate for him, as well as making sure that the management and staff understood and paid proper heed to TC's concerns and opinions.
In my opinion TC does have a need for a person to act in such a role given the very considerable difficulties in communication that have arisen in the past and the conflict that has been generated to such an extent that TC's future accommodation may be in doubt.
In LJH [2007] WASAT 139 at [28] and [29] (LJH) I discussed the differing views about the role of a guardian, drawing attention to the differences between a 'substitute decisionmaking model' and a 'care' model. This distinction was considered by the Australian Law Reform Commission in its 1989 report on Guardianship and the Management of Property. The principal distinction between the two models was that the former was based upon an assessment that the person needed to make decisions about welfare or health and lacked the legal capacity to make those decisions, whereas the 'care' model required not only a lack of legal capacity to make decisions but also an inability of the person to manage his or her daytoday life and his or her needs except by the appointment of a guardian. In LJH at [28] I referred to the view expressed by the Full Board of the Guardianship and Administration Board in the case of LGW [2004] WAGAB 4 at [34] where the Board favoured a view that equated the role of a guardian with the parental responsibility of a parent which might involve:
'… making inquiries, obtaining information, seeking assistance, martialling services or making submissions on behalf of the represented person as well as being the 'voice' with legal standing to assert the best interests of the represented person.
I consider that the evidence in this case shows that TC has a need for a person to perform such a role. A person performing that role could be expected to be a source of information for TC, and would attempt to influence TC to form a more positive view about the good intentions of his care staff and to be more receptive to daytoday care of him by those staff members and, generally, to be more receptive to medical treatment generally.
It follows that, in my opinion, TC requires a guardian with powers to consent on his behalf to medical care and treatment that he may require and to act generally as an advocate in all matters relating to his accommodation, care and wellbeing.
Who should be appointed as guardian?
In his application GT did not nominate any person who might be appointed as guardian. At the hearing there was considerable discussion as to who might perform this role. All agreed that Ms C has maintained an important relationship with TC despite her absence from Western Australia. She visits him whenever she can (which appears to be a couple of times a year) and she speaks to him on the telephone regularly. Ms C was, initially, keen to see a family member appointed to the role of guardian and suggested that she and TC's brother (MC) might take on the job. In the course of discussion at the hearing it emerged that TC had not seen his brother for many years. GT and Ms M, although very appreciative of the efforts made by Ms C to stay in contact with TC and to attempt to influence TC's attitudes and behaviour in their regular telephone calls, said that they thought it was important that whoever was appointed as TC's guardian should be based in Western Australia so that they could provide a more onthespot service when it was required. Although it was not possible to predict how often the guardian services would be needed, it was thought that it would be necessary for the guardian to be able to respond to situations as they arose.
TC was asked whether he had any preference for a family member being appointed or whether someone from outside the family should be appointed. He said that he was not worried either way.
Consideration was given at the hearing to whether it would be possible to appoint Ms C and the Public Advocate as joint guardians for TC. Ms C said she would be happy to work with the Public Advocate in this way. However, Ms F said that the Public Advocate has a preference for being a sole guardian, but makes every effort to communicate with family members and interested parties prior to any decision being taken. In those circumstances Ms C said that she would be happy for the Public Advocate to be appointed.
Section 44 of the GA Act provides relevantly that the Tribunal must form the opinion that a proposed guardian will act in the best interests of the person concerned, is not in a position where his or her interests conflict or may conflict with the interests of the person concerned, and is otherwise suitable to act as the guardian having regard to the factors to be taken into account that are set out in s 44(2). In addition, s 44(5) of the GA Act provides that except where a joint appointment is made, the Public Advocate should not be appointed as a guardian unless there is no other person who is suitable and willing to act.
I am satisfied that Ms C would be a suitable person to appoint as TC's guardian but for the fact that she is not resident in Western Australia. Given the nature of the appointment to be made and the way it is expected to operate, I consider that it is necessary that TC's guardian be based in this State and able to become involved in making decisions and advocating on behalf of TC, sometimes at short notice. This will, in my opinion, require the guardian to be able to attend at TC's residence on a regular basis and sometimes on short notice. Ms C could attempt to perform such a role by telephone, but I consider that it would not be possible for her to perform the role to its greatest extent in that way.
It follows that I consider that the Public Advocate should be appointed with the functions set out above.
Review date
Although TC's condition and needs are unlikely to change in the foreseeable future, in view of the circumstances in which TC is living and the particular role contemplated for the guardian I consider that it would be appropriate for the Tribunal to review this order after a relatively short period of time. I consider that a period of two years is appropriate in order to see whether the arrangements contemplated by the order work out
in practice. It is, of course, possible for any interested party to apply to the Tribunal for an earlier review should any circumstances change.
I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M ALLEN, SENIOR MEMBER
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