HSB
[2007] WASAT 240
•17 SEPTEMBER 2007
HSB [2007] WASAT 240
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 240 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:907/2007 | 4 JULY 2007 | |
| Coram: | MR J MANSVELD (MEMBER) | 17/09/07 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | The Public Advocate is appointed limited guardian | ||
| B | |||
| PDF Version |
| Parties: | HSB |
Catchwords: | Guardianship Guardianship and Administration Act 1990 (WA) protective in its design Need for a guardian Less restrictive alternative to the appointment of a guardian Need to balance the protection of a person with a right to autonomy |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 43(1)(a), s 43(1)(b), s 43(1)(c), s 44(5), s 51, s 90(1), s 90(2) State Administrative Tribunal Act 2004 (WA), s 78 |
Case References: | LGW [2004] WAGAB 4 Re Full Board of Guardianship and Administration Board [2003] WASCA 268 |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : HSB [2007] WASAT 240 MEMBER : MR J MANSVELD (MEMBER) HEARD : 4 JULY 2007 DELIVERED : 17 SEPTEMBER 2007 FILE NO/S : GAA 907 of 2007 BETWEEN : HSB
- Applicant
Catchwords:
Guardianship Guardianship and Administration Act 1990 (WA) protective in its design Need for a guardian Less restrictive alternative to the appointment of a guardian Need to balance the protection of a person with a right to autonomy
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 43(1)(a), s 43(1)(b), s 43(1)(c), s 44(5), s 51, s 90(1), s 90(2)
State Administrative Tribunal Act 2004 (WA), s 78
Result:
The Public Advocate is appointed limited guardian
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Self represented
Solicitors:
Applicant : Self represented
Case(s) referred to in decision(s):
LGW [2004] WAGAB 4
Re Full Board of Guardianship and Administration Board [2003] WASCA 268
(Page 3)
Summary of Tribunal's decision
1 The Tribunal reviewed a guardianship order for a young woman who suffered from an intellectual disability and a mental illness. The order had been made in 2006 for 12 months and that order had confirmed an earlier order made in 2004.
2 The Public Advocate had been appointed the woman's plenary guardian.
3 At the review hearing the Public Advocate submitted that the guardianship order was no longer needed because the woman was now in stable, supported accommodation and no decision had been required for 12 months.
4 The woman's mother and the accommodation provider submitted that the guardian formed an important part of the woman's support structure. The guardian was accepted as the authority figure and this had enabled the woman's mother to re-establish a relationship with her.
5 The mother was not well and was not able to take on the responsibility of being the woman's guardian.
6 The Tribunal was persuaded by the submission of the woman's mother and accommodation provider for three reasons. The first was that it is made by those who had an intimate understanding of the woman's needs, strengths and weaknesses. Secondly, the stability recently found in the woman's life was accepted by all parties as being fragile and subject to challenge at any time because of her impulsive decision-making. The woman's impulsivity could have a potentially catastrophic effect on her accommodation, support and work. Thirdly, the tribunal accepted the contention that it was too early to say that the woman had matured to the extent necessary where the protection of an order was not in her current best interests.
7 The Public Advocate was reappointed the woman's limited guardian for a period of 12 months.
Background
8 These reasons relate to the review of an order for guardianship for HSB made by the Tribunal on 5 July 2006 for a period of 12 months.
(Page 4)
9 HSB is a lady of 29 years who suffers from an intellectual disability and a mental illness.
10 The order under review appointed the Public Advocate as HSB's plenary guardian. That order confirmed an earlier order of the former Guardianship and Administration Board made in 2004.
11 The Tribunal took over the functions of the Guardianship and Administration Board in January 2005.
12 The relevant legislation is the Guardianship and Administration Act 1990 (WA)(GA Act).
Hearing
13 The hearing for the review of the guardianship order was held on 4 July 2007. In attendance was HSB, her mother, SB; the mother's partner, CM; SM, Manager of Operational Services at the service which provides accommodation and support for HSB; MB, House Coordinator at that service and PW, the delegated guardian from the Office of the Public Advocate (Public Advocate).
Decision of the Tribunal
14 I have decided to revoke the order of 5 July 2006 and to make a new order appointing the Public Advocate as HSB's limited guardian. The guardian is given the functions of deciding where and with whom HSB should live; to decide whether HSB should work and if so the nature or type of work she is to perform and for whom she is to work; to consent to her treatment and health care and to determine what contact, if any, she should have with others and the extent of that contact.
15 The order is to be reviewed in 12 months.
16 The Public Advocate has sought written reasons for the decision (10 July 2007), and these reasons are provided pursuant to s 78 of the State Administrative Tribunal Act 2004 (WA).
Reasons for Decision
The review
17 The review of the guardianship order falls in the Tribunal's original jurisdiction (s 90(2) of the GA Act).
(Page 5)
18 Upon review the Tribunal may confirm the order, amend the order, revoke the order or revoke the order and substitute another order for it (s 90(1)).
19 In dealing with these proceedings under the GA Act, the Tribunal shall observe the following principles in respect of HSB (s 4(2)):
• The primary concern of the Tribunal shall be her best interests (s 4(2)(a)).
• She shall be presumed to be capable of ¾
(i) looking after her own health and safety;
(ii) making reasonable judgments in respect of matters relating to her person; and
(iii) managing her own affairs;
- until the contrary is proved to the satisfaction of the Tribunal (s 4(2)(b)).
• A guardianship order shall not be made if the needs of HSB could, in the opinion of the Tribunal, be met by other means less restrictive of her freedom of decision and action (s 4(2)(c)).
• 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 HSB (s 4(2)(d)).
• An order appointing a limited guardian for HSB shall be in terms that, in the opinion of the Tribunal, impose the least restrictions possible in the circumstances on her freedom of decision and action (s 4(2)(e)).
• The Tribunal shall, as far as possible, seek to ascertain the views and wishes of HSB as expressed, in whatever manner, at the time, or as gathered from her previous actions (s 4(2)(f)).
20 Subject to s 4 of the GA Act (see above), the Tribunal has to be satisfied that HSB has attained the age of 18 years (s 43(1)(a)) and is:
(Page 6)
- • incapable of looking after her own health and safety;
• unable to make reasonable judgments in respect of matters relating to her person; or
• in need of oversight, care or control in the interests of her own health and safety or for the protection of others (s 43(1)(b)); and
• is in need of a guardian (s 43(1)(c)).
21 HSB is 29 years of age and therefore satisfies s 43(1)(a) of the GA Act.
22 The Tribunal has been provided with a report from Dr PL, psychiatrist, (May 2007) who states that HSB suffers from a borderline intellectual disability, a paranoid disorder and depression. Dr PL states that she has not seen HSB since August 2006. The intellectual disability is said by Dr PL to be a lifelong condition and the paranoid disorder and depression are said to respond to treatment. Dr PL states that HSB makes impulsive and inappropriate decisions, is concrete in her thinking and is easily influenced by persons who will "use her".
23 In an earlier report (June 2006) Dr PL stated that HSB "will make irrational, impulsive decisions … with no insight to actions, not able to learn by experience. Not open to reason and adheres to her own irrational beliefs. Thinks in a very concrete manner."
24 There is no dispute that HSB is a person for whom a guardian could continue to be appointed.
25 I am satisfied that HSB meets the provisions of s 43(1)(b) of the GA Act.
26 The critical question is whether HSB is still in need of a guardian or whether her needs could be met by other means less restrictive of her freedom of decision and action (s 43(1)(c); s 4(2)(c)).
27 Two submissions have been presented on the question of need, that of the guardian (Public Advocate) and that of SB, CM, SM and MB (mother, mother's partner and accommodation provider).
(Page 7)
The Public Advocate's submission
28 The Public Advocate's submission is this. HSB has expressed that she is happy with her current accommodation and the support she receives. She is able to lead a relatively independent lifestyle whilst having access to 24 hour carer support on-site. An example of how HSB's life has settled is the recent holiday she took with her mother to visit family outside Western Australia.
29 HSB has stated that she is not happy where she is currently working (supported employment), and has reduced her working days from five to three days a week. The Public Advocate is of the view that HSB is unrealistic about being able to manage in open employment because of behaviour management difficulties. It is likely, however, that her family and accommodation provider will be able to counsel her on work options.
30 HSB remains vulnerable to entering into relationships that are not in her best interests. This can affect her accommodation as she can impulsively decide to form a relationship, consider marriage and seek to leave where she is currently living without contemplating her immediate or future best interests. This type of situation arose in late 2006 and early 2007 but was successfully dealt with by HSB with the support of family and staff of the accommodation provider.
31 In respect of decisions about medical treatment and health care, the Public Advocate submits that HSB will be able to deal with health care professionals directly as she has previously done and that for "significant decisions" she can (as she has done) turn to her mother for advice and support. It is the Public Advocate's understanding that SB (mother) is willing to give the necessary consent for medical intervention should that be required.
32 The Public Advocate states that intervention as guardian has not been required over the previous 12 months and that HSB is unlikely to benefit from the continuation of a guardianship order. HSB should be given the opportunity to be "… at the centre of her own decision making rather than having to answer to a substitute decision maker." (T:6)
33 The Public Advocate submits that the guardianship order should be revoked.
(Page 8)
The submissions of SB, CM, SM, and MB
34 The submissions of the mother, her partner and the representatives of the accommodation provider put a somewhat different emphasis on the question of HSB's need for a guardian.
35 Prior to her present accommodation, HSB's circumstances were very unstable (the Public Advocate says that the intention of the guardianship order in 2004 was to help at a point when things were very unsettled and bleak (T:5)).
36 HSB has lived at her current accommodation for about 12 months. SB's concern for her daughter's circumstances is that it is a potential "time bomb" despite the fact that she is very satisfied with the support given to HSB by the accommodation provider (SB says that they have got through some very rough times with HSB over the last year). SB states:
"… Unfortunately from previous history it is not a case of if but when. I think having the guardian in situ psychologically dampens that and I have found that has sort of kept hold of a lot of situations in those precarious situations ..." (T:9)
37 SB says that she has been able to re-establish her relationship with HSB which had previously broken down. She states:
"… my relationship with [HSB] has improved so much because the pressure has gone right off me and I can just be mum without being involved." (T:11)
38 SB says that she suffers from a debilitating illness which is prone to relapse and which compromises her ability to be available for matters concerning her daughter.
39 The lack of an authority figure raises a concern for SB's partner, CM. When asked in what areas of HSB's life a guardian might continue to be of benefit, he states:
"The issues that have been of concern to us are [HSB's] relationships and sometimes the appropriateness or not of those relationships. The other thing is about residency and where it is she actually lives and which is sometimes tied up with those relationships. Now, [SB] can say to [HSB] what she feels about those matters but there is no mandate there - there is no authority there. So we are always fearful of that reoccuring [sic] again." (T:12)
(Page 9)
40 As the accommodation provider, SM states:
" … what we see is that the guardianship - things are successful because of the order being in place in the fact that it has created a circuit breaker in the relationship between [HSB] and her mum in the fact that [SB] now is at least able to come and speak on a very personal level knowing that sort of, you know, the decisions and discussions they actually have that, you know, [HSB] can speak to her knowing that her mum is not in a position to overrule." (T:13)
41 SM says that HSB is a very emotive person and that her impulsive decision-making can lead to potentially life changing events (for example, HSB wanting to immediately change her accommodation because she has entered into a relationship). In these situations decisions need to be made in the best interests of HSB, but as SM states:
"… and there are those different areas that again is [sic] still around the relationship side of things and so forth as well. These are areas - while we are very happy to support [HSB] in that accommodation they are areas that again are well outside our mandate. Again, it is part of our obligation but it is outside of our mandate to actually sort of - you know, to make sort of overarching decisions." (T:14)
42 SM uses the example of his agency currently contemplating the development of an accommodation service in another suburban area and whether HSB should be considered for that service as a decision the agency is not mandated to make.
43 SM puts it this way:
"We speak with [HSB] first and speak with the guardian and really it allows us I suppose a measure of comfort in us going forward and dealing with these situations as well to actually know that we are acting on - and with [HSB's] best interests at heart and making sure that we are not sort of limiting her opportunities." (T:13)
44 SB states:
"I think there is potential there saying, you know, "Think about what [the guardian] would say. Have a talk to [the guardian]". I often say that that terminology, the circuit-breaker, I think
(Page 10)
- probably - probably a surprisingly effective, quiet factor through the last 12 months. From my point of view definitely because, as I said before, I can be mum without having to make decisions or having really major tension with [HSB] and me in those areas." (T:23)
45 SM and SB support the continuation of the guardianship order for another 12 months and submit that it is too early to say that HSB has matured to the extent where the informal processes are sufficient for the making of important decisions.
The submission of HB (HSB's father)
46 HB did not attend the hearing but provided a letter to the Tribunal for the purposes of the hearing. In that letter HB states that since HSB has been living in accommodation provided by the accommodation provider, he has noticed a decided difference in her behaviour and the way she goes about her everyday living. He states that the accommodation provider has been doing a very commendable job and is of the view that the guardianship could be taken over by the accommodation provider.
The wishes of HSB
47 HSB states that her decision-making is a bit [or a] lot better than previously and that she sometimes still needs assistance in making decisions. As to the need for a guardian she states that "I can always have [the guardian] as a backup." (T:4)
48 HSB says that she would rather work somewhere else than her current employment. She attends TAFE two days a week which she enjoys.
The decision of the Tribunal
49 As mentioned earlier in these reasons, the critical decision is whether HSB is in ongoing need of a guardian.
50 The decision to be made is mediated by the provisions of s 4(2)(c) (see above) and, if a guardian is appointed, by the provisions of s 51 of the GA Act. The former requires me to form an opinion as to whether the needs of HSB can be met without the making of an order and if they can, to not make an order. The latter guides a guardian when deciding what might be in a person's best interests. It includes the requirement that a guardian act as an advocate for the person; encourage the person to participate as much as possible in the life of the community; encourage
(Page 11)
- and assist the person to care for themselves and make reasonable judgments; protect the person from neglect, abuse or exploitation; take account of the person's wishes; act in a manner which is least restrictive of the person's rights but consistent with their proper protection; maintain the person's supportive relationships and their familiar cultural, linguistic and religious environment.
51 This is consistent with the view that the GA Act is essentially protective in its design (see EM Heenan J in Re Full Board of Guardianship and Administration Board [2003] WASCA 268 at [43]) but that a person's autonomy should be encouraged to the fullest extent possible either by not making an order, or if a guardian is to be appointed, by the guardian acting in the person's best interests as expressed in s 51 of the GA Act.
52 The Public Advocate submits that HSB, with the assistance of her mother and accommodation provider, has effectively weathered any storm over the last 12 months and this process of decision-making and support should be allowed to continue without the intrusion of a guardian.
53 HSB's mother and accommodation provider say that the success of the last 12 months (not without its challenges) is in fact a consequence of a relationship dynamic which sustains the process of decision-making in HSB's life to which the Public Advocate refers. This has the guardian as the authority figure, the accommodation provider making available a relatively independent yet supportive environment and SB in the position of being able to interact with her daughter without a great risk of alienating her with decisions against her wishes.
54 In this scenario the authority of the guardian may be invoked directly or indirectly as the need dictates and has the characteristics of parental responsibility envisaged by the GA Act (see LGW [2004] WAGAB 4 at [33] to [35]).
55 I am persuaded by this submission for three reasons. The first is that it is made by those who have an intimate understanding of HSB's needs, strengths and weaknesses. Secondly, the stability recently found in HSB's life is, it is accepted by all parties, fragile and subject to challenge at any time because of her impulsive decision-making. HSB's impulsivity can have a potentially catastrophic effect on her accommodation, support and work. Thirdly, I accept the contention that it is too early to say that HSB has matured to the extent necessary where the protection of an order is not in her current best interests.
(Page 12)
56 Consistent with the principle expressed in s 4(2)(d) I have decided that a plenary order is no longer required and that a limited order is sufficient to meet HSB's needs.
57 I have decided to reappoint the Public Advocate as HSB's guardian because there is no other person willing to act (s 44(5)). On the evidence before me, the appropriate and reasonable functions of the guardian will be to decide the questions of HSB's accommodation, work, treatment and health care and contact with others.
58 I accept the submission of SM that an order for 12 months will enable a more realistic determination to be made as to whether the recent gains made in HSB's life are sustainable such that the guardianship order can be removed.
Order
The order of 5 July 2006 be revoked and a guardianship order in the following terms be substituted for it:
1. The Public Advocate be appointed limited guardian of HSB with the following functions:
(a) To decide where she is to live, whether permanently or temporarily;
(b) To decide with whom she is to live;
(c) To decide whether she should work and, if so, the nature or type of work, for whom she is to work and matters related thereto;
(d) Subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA), to consent to any treatment or health care; and
(e) To determine what contact, if any, she should have with others and the extent of that contact.
2. The Tribunal approves delegation by the Public Advocate of her functions as guardian of HSB to an officer or employee employed in the Office of the Public Advocate.
3. The order is to be reviewed by 4 July 2008.
(Page 13)
I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER
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