HH
[2014] WASAT 95
HH [2014] WASAT 95
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 95 | |
| 04/08/2014 | |||
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2314/2014 | 22 JULY 2014 | |
| Coram: | MR J MANSVELD (SENIOR MEMBER) | 1/08/14 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Guardian appointed | ||
| B | |||
| PDF Version |
| Parties: | HH |
Catchwords: | Guardianship Treatment decisions Reasonable judgments Health and safety Oversight Common law position on capacity to make treatment decisions Delusional disorder impacting on capacity to make reasonable judgments Guardianship and parental authority |
Legislation: | Guardian and Administration Act 1990 (WA), s 4, s 43, s 43(1), s 44, s 44(5), s 45, s 45(1), s 51, s 84, s 97(1)(b)(i) |
Case References: | Brightwater Care Group (Inc) v Rossiter [2009] WASC 229 FS [2007] WASAT 202 Hunter and New England Area Health Service v A [2009] NSWSC 761 NCK [2004] WAGAB 6 |
Summary | A 66yearold man was diagnosed with heart disease but had refused treatment for the condition.,A mental health service applied for a guardian to be appointed for the man to make treatment decisions in respect to the heart disease.,The man was assessed as having a delusional disorder such that he did not accept there was a physical basis to his heart disease but rather the problem with his heart was caused by anxiety that had arisen from traumatic events in his life. ,The Tribunal found that the man was unable to make reasonable judgments in respect to treatment for the heart disease and appointed a guardian for that purpose.,Submissions were made on the difficulty of giving practical effect to the operation of the guardianship order if the man continued to refuse treatment.,The Tribunal determined that the role of a guardian is like that of a parent and in that role might find it difficult to enforce decisions made from time to time. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : HH [2014] WASAT 95 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : 22 JULY 2014 DELIVERED : 1 AUGUST 2014 PUBLISHED : 4 AUGUST 2014 FILE NO/S : GAA 2314 of 2014 MATTER : HH
- Represented Person
Catchwords:
Guardianship Treatment decisions Reasonable judgments Health and safety Oversight Common law position on capacity to make treatment decisions Delusional disorder impacting on capacity to make reasonable judgments Guardianship and parental authority
Legislation:
Guardian and Administration Act 1990 (WA), s 4, s 43, s 43(1), s 44, s 44(5), s 45, s 45(1), s 51, s 84, s 97(1)(b)(i)
Result:
Guardian appointed
Summary of Tribunal's decision:
A 66yearold man was diagnosed with heart disease but had refused treatment for the condition.
A mental health service applied for a guardian to be appointed for the man to make treatment decisions in respect to the heart disease.
The man was assessed as having a delusional disorder such that he did not accept there was a physical basis to his heart disease but rather the problem with his heart was caused by anxiety that had arisen from traumatic events in his life.
The Tribunal found that the man was unable to make reasonable judgments in respect to treatment for the heart disease and appointed a guardian for that purpose.
Submissions were made on the difficulty of giving practical effect to the operation of the guardianship order if the man continued to refuse treatment.
The Tribunal determined that the role of a guardian is like that of a parent and in that role might find it difficult to enforce decisions made from time to time.
Category: B
Representation:
Counsel:
Represented Person : Mr G Boland
Solicitors:
Represented Person : Legal Aid Commission of Western Australia
Case(s) referred to in decision(s):
Brightwater Care Group (Inc) v Rossiter [2009] WASC 229
FS [2007] WASAT 202
Hunter and New England Area Health Service v A [2009] NSWSC 761
NCK [2004] WAGAB 6
Introduction
1 An application for the appointment of a guardian for HH (the represented person) has been made by a mental health service (the applicant). The need for a guardian is stated by the applicant to arise out of a diagnosed heart disease which requires treatment. The applicant contends that due to a delusional disorder the represented person is unable to make a reasonable judgment about the treatment for the heart disease.
2 In a letter to the represented person's general practitioner from the Department of Cardiology at Royal Perth Hospital (RPH) dated 5 March 2014, the heart disease is described as 'valvular heart disease'. It is elsewhere described as 'severe aortic stenosis' (RPH discharge letter, 27 May 2014) and 'mitral valve stenosis and chronic obstructive pulmonary disease' (Dr OL, specialist psychogeriatrician, 9 June 2014).
3 Dr OL states that the represented person was admitted to RPH on 20 May 2014 with visual hallucinations and was found to be in acute heart failure. He was reviewed by a cardiologist and it has been recommended that he have a cardiac stent. It is reported by Dr OL that the represented person has refused the treatment.
4 The hearing on 4 July 2014 was attended by the represented person, his legal representative, representatives of the applicant, Dr OL and BT from the Office of the Public Advocate.
5 The decision was reserved. What follows is the decision and reasons.
6 The names of the parties have been anonymised pursuant to confidentiality provisions of the Guardianship and Administration Act 1990 (WA) (GA Act).
Relevant legislation
7 The statutory regime for the appointment of a guardian is contained in the GA Act, in particular, s 4, s 43, s 44 and s 45.
8 In summary, the process for the appointment of a guardian is as follows:
1) In the making of a guardianship order s 43(1) of the GA Act states that the Tribunal must be satisfied that a person has attained the age of 18 years; is incapable of looking after his own health and safety; unable to make reasonable judgments in respect to matters relating to his person or is in need of oversight, care or control in the interests of his own health and safety or for the protection of others and is in need of a guardian.
2) A person for whom an application for a guardianship order has been made is presumed to be capable of looking after his own health and safety and making reasonable judgments in respect of matters relating to his person until the contrary is proved to the satisfaction of the Tribunal (s 4(3)(a) and (b) of the GA Act).
3) A guardianship order shall not be made if the needs of the person could, in the opinion of the Tribunal, be met by other means less restrictive of the person's freedom of decision and action (s 4(4) of the GA Act).
4) Section 4(5) of the GA Act states that a plenary guardian shall not be appointed if the appointment of a limited guardian would be sufficient, in the opinion of the Tribunal, to meet the needs of the person.
5) The Tribunal shall as far as possible seek to ascertain the wishes of the person, however the primary concern is the best interests of the person (s 4(2) and 4(7) of the GA Act).
6) If a guardianship order is to be made then the Public Advocate shall only be appointed if there is no other person suitable and willing to act (s 44(5) of the GA Act).
7) Section 45 of the GA Act characterises the authority of a guardian in terms of parental authority as if the person were a child lacking in mature understanding.
The represented person's evidence and submissions
9 The represented person does not accept that he has heart disease that can respond to treatment. He says that he accepts that people can have physical problems with their hearts but that he does not have this problem because he has not suffered a stroke or heart attack and does not suffer from chest pains.
10 The represented person states that he has had a number of traumas in his life and believes these traumas have resulted in a degree of anxiety which impacts on the way his heart functions. The traumatic events he mentions include the death of his wife, the estrangement from his two sons and the loss of property.
11 Another traumatic event relates to the chance sighting of a woman in a bank in 1994 with whom the represented person says he fell instantly in love. There was some attempt to make contact by writing to her but he was told to stop after the police became involved. The represented person has not attempted to contact the woman since that time and states that because her appearance would have changed in the past 20 years he likely would not now recognise her and so 'I won't be able to act on it any more' (T:40; 04.07.14).
12 The represented person states that the woman continues to influence his thinking on daily basis, 'all day long' (T:40; 04.07.14) and that he remains in love with her. In rejecting the medical advice that he has a physical problem with his heart, the represented person states simply that he has a broken heart: 'That's all it is' (T:41; 04.07.14).
13 The represented person believes that an operation to his heart will not resolve his problem. He states:
And then because of my medical - mental condition, the previous problems I've had, the - the - the heart is going to go back to set up again this similar problem again. I'm going to have this similar problem like anxiety. The anxiety is not removed. Anxiety is there. Once the anxiety is not gone and the heart is - doesn't matter how many times the - the doctors attend to my heart, the anxiety is the one that running it, and then the - the adjustment to be made to (indistinct) the heart's valves and so on will not be eliminated. (T:32-33; 04.07.14)
14 The represented person states that the anxiety causes what he calls a 'heart rush' (T:22; 04.07.14). He says that he becomes breathless when he walks out of his unit. On the other hand he states that he exercises an hour each day and this helps him. The represented person puts it this way:
And then when it comes to exercising, I do exercise one hour every day and then I don't have any - any problem. And then I see myself that while I'm exercising and then I don't have any problem. And then walking outside on the street, there are things that the - I - loneliness? Could it be loneliness? Could it be losing all your family, losing all your houses? I get two houses and lost them, because couldn't pay them off, and I end up on the street and these are all making a - anxiety in my life.
(T:23; 04.07.14)
15 When initially asked that if he does believe he has a physical heart problem would he consider surgery, the represented person says no and that he would take the risk on the basis that 'life is risk' (T:35; 04.07.14). He then goes on to say that the surgery would be a waste of time because the anxiety, which in his view is the cause of the problem, would not be removed.
16 The represented person believes the heart is a unique organ which is different to every other part of the body. He has consented to treatment for other physical conditions, for example he has had cataracts removed and he says that he would consent to treatment, for example, if he were injured.
17 The represented person's submission is that he is not in need of a guardian. He accepts treatment for his psychiatric condition and for a range of other conditions. He says that he is capable of looking after his own health and safety. Counsel for the represented person submits that it would be a significant impact on his autonomy were a guardian appointed and there is a question whether any order the Tribunal might make can be given practical effect given the represented person's current refusal to accept treatment. The heart disease is not considered to be at an acute stage.
18 Counsel submits that the better way may be for the treating medical team to put a greater and more sustained effort into informing and convincing the represented person about the need for treatment.
Evidence and submissions of Dr OL, psychogeriatrician
19 Dr OL states that the represented person first came to the attention of the applicant in about 2013 when the facility in which the represented person lives became concerned that he was expressing some unusual ideas about a particular woman and towards other residents. Treatment was trialled but the represented person was not keen on having it continued and he was discharged to his general practitioner.
20 The same concern was again raised this year but on the basis that the represented person appeared more expressive about what Dr OL characterises as his 'delusional ideas about this particular woman' (T:12; 04.07.14).
21 The represented person initially agreed to a proposed treatment of antipsychotic medication which was later changed after an episode of what appeared to be delirium for which he was hospitalised.
22 Dr OL states that while hospitalised, the represented person was found to have signs of heart failure which was treated. The represented person subsequently refused a stent procedure and Dr OL says that he explained to her that the x-ray machines in the hospital were faulty and that the cardiologist was given the wrong information.
23 Dr OL states that she recently attended to the represented person and he has done some things (the exercise) to ameliorate his cardiovascular condition but he has adopted the view that this would resolve the heart disease which Dr OL states is not correct other than it may slow down its progression.
24 Dr OL states that she does not expect the antipsychotic medication (or any other treatment) to resolve the delusions about the woman and in that respect the represented person's psychosis is fixed.
25 Dr OL states that she assesses the represented person's thinking of the woman as delusional because his belief persists that she is in love with him and that she is monitoring him through other residents at the facility in which he lives.
26 Dr OL assesses the represented person in this way:
I think this is a really particularly more difficult situation than others, because, I think, as [the represented person] has shown that he has the capacity to understand that there are physical problems with the heart and there are treatments for it, it - from my point of view, his view that the anxiety is causing his heart condition, which is fixable by exercise and actually is not actually a condition at all, means that - means to me that he wasn't able to process the information about the valvular disease and the heart condition that he has. The anxiety is related to the issues around the delusional beliefs around the woman and so on. So in that way, I am of the opinion that he has not able to rationally process the information, particularly about this situation.
(T:37-38; 04.07.14)
… I suppose the problem seems to be that he doesn't apply that information [information about the medical condition] to himself. For whatever reason, he's exempt from the information about his heart condition. And I think, as you heard, that he has spoken of that. He - that this is driven by his idea that anxiety is driven by a number of losses in his life, including one which was delusionary driven. And what we've kind of gathered from our contact is that that actually is quite a pre-occupation. And my opinion is that it had paid a significant part to the cause of the anxiety which has then moved to his belief that, yes, his heart condition is not of his (indistinct), but that caused by the anxiety. And I think - I was going to say that he has accepted another - in other situations, he has health conditions and he has accepted treatment for them when it didn't interfere with anxiety with those beliefs, in spite of, you know, having had those losses still applied to him in those other health conditions, and he has accepted treatment. And therefore sort of that's more evidence for me to say that this is delusionally driven or irrational.
(T:47-48; 04.07.14)
27 Dr OL states that if left untreated she expects the represented person's heart disease to worsen requiring more frequent hospital admissions. She anticipates an appointed guardian would discuss the required treatment with the represented person but that until it became an emergency she would not anticipate the guardian would force him to have treatment against his wishes.
28 Dr OL expressed a concern that as the represented person's psychotic illness is unlikely to resolve and the mental health service is therefore unlikely to continue with its involvement, then without a guardian there would be no one to monitor him.
The submissions of the Public Advocate
29 Under s 97(1)(b)(i) of the GA Act the role of the Public Advocate at hearings before the Tribunal is to advance the best interests of the person to whom the proceedings relate.
30 The submission of BT is that Dr OL's evidence shows that the represented person's decision-making in respect to his heart disease is not rationally based. She states that she is also unsure if the represented person fully understands the consequences of not having treatment.
31 The further submission of BT is to question how effective an appointed guardian would be and, therefore, what might be the need for a guardianship order. She also says that if a guardian is to be appointed, then the vote should be restricted to treatment decisions around the represented person's heart disease.
The decision of the Tribunal
32 The primary question before the Tribunal is whether the represented person is able to make reasonable judgments in respect of the treatment of his heart disease or whether in the context of that disease he is incapable of looking after his own health and safety or is in need of oversight, care or control in the interests of his own health and safety.
33 If I find on the evidence that the represented person satisfies these requirements, the further question is whether he is in need of a guardian or whether his needs can be met in a manner less restrictive of his freedom of decision and action.
34 It is to the treatment of the represented person's heart disease that the applicant has directed my attention; there has been nothing put to me suggesting a guardian is needed for any other purpose.
35 It is therefore to that issue that my decision will be focused.
36 The Full Tribunal in FS [2007] WASAT 202 (FS) observes what is encompassed in the term 'reasonable judgment' at [109]:
… the making of a 'reasonable judgment' is the outcome of a process that involves knowledge, understanding and evaluation.
37 In my view the process outlined in FS is analogous to the common law position in deciding whether a person has capacity to make their own treatment decisions. The common law position is discussed in Brightwater Care Group (Inc) v Rossiter [2009] WASC 229 at [13], where Martin CJ in deciding that Mr Rossiter had the capacity to make an informed decision about his treatment, relied upon medical evidence which assessed that Mr Rossiter:
… has the capacity to comprehend and retain information given to him in relation to his treatment, and has the capacity to weigh up that information and bring other factors and considerations into account in order to arrive at an informed decision.
38 In Hunter and New England Area Health Service v A [2009] NSWSC 761, the Court put it this way at [40(7)]:
… In considering the question of capacity, it is necessary to take into account both the importance of the decision and the ability of the individual to receive, retain and process information given to him or her that bears on the decision.
39 On the uncontested evidence of Dr OL and consistent with the represented person's own evidence, I am satisfied that the represented person is unable to make reasonable judgments about treatment for his heart condition for the following reasons.
40 The represented person suffers from a psychotic illness, the symptom of which is a fixed and treatment resistant, delusional disorder. The delusional disorder manifests in a false belief that he does not have a physical problem with his heart notwithstanding a diagnosis of heart disease.
41 The false belief held by the represented person is that an anxiety that has arisen from traumatic events in his past is the cause of his heart problems and therefore any physical intervention is unnecessary and would be of no effect.
42 I am satisfied on the evidence that although the represented person has the cognitive ability to receive and retain information, he is unable, due to his delusional disorder, to weigh up or otherwise process that information to make a reasonable judgment about treatment for his heart disease. This is because his delusional disorder effectively blocks the processing of the medical information given to him about his heart disease.
43 For the same reasons I am satisfied that in respect to the treatment of his heart disease that the represented person is incapable of looking after his own health and safety and is in need of oversight in the interests of his own health and safety given that his heart disease is treatable and that the condition will worsen over time if left untreated.
44 In determining the question of the need for a guardianship order, submissions have been made as to whether, in practical terms, the order can operate if the represented person continues to refuse treatment.
45 The role of a guardian is characterised by reference to the role of a parent (see s 45(1) of the GA Act). In that regard a guardian, like a parent, might be constrained to give effect to a decision for all sorts of reasons but may nevertheless in the context of a particular set of circumstances, '… intervene in a more generalised sense, in the affairs of a person (NCK [2004] WAGAB 6 at [64] and see also s 51 of the GA Act)
46 In that regard a guardian for the represented person would at the very least engage with him and monitor the progress of his heart disease and also engage with the relevant medical practitioners in an attempt to have regular reviews of his condition and to plan, to the extent possible, for treatment. Should a situation arise where hospitalisation is required because of a medical event then a guardian would be in a position to make timely treatment decisions.
47 For all of the above reasons I am satisfied that it is in the represented person's best interests that a guardian be appointed to make treatment decisions in respect of his heart disease and to decide matters incidental thereto.
48 No other need has been identified from the evidence.
49 Because there is no other person suitable or willing to act as guardian I must appoint the Public Advocate in that role.
50 I will set a review of the order in five years, the maximum time available to me under s 84 of the GA Act. I do so because I am satisfied that the represented person's delusional disorder is of long standing, is fixed and does not respond to treatment.
Order
The Tribunal declares that HH;
(a) is incapable of looking after his own health and safety;
(b) is unable to make reasonable judgments in respect of matters relating to his person;
(c) is in need of oversight, care or control in the interests of his own health and safety; and
(d) is in need of a guardian,
and the Tribunal orders that:
1. 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, to make treatment decisions for the represented person in respect of his heart disease and to decide matters incidental thereto.
2. The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
3. This order is to be reviewed by 1 August 2019.
I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER
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