In the Matter of AB
[2017] ACAT 67
•6 September 2017
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
IN THE MATTER OF AB (Guardianship) [2017] ACAT 67
GT 2/2017
Catchwords: GUARDIANSHIP – review of appointment of Public Trustee and Guardian as guardian and manager for a person being treated for mental illness under psychiatric treatment order – statutory criteria for appointment – scope of “otherwise suitable” for appointment – factors to be taken into account – difficult relationship between protected person’s family and the person’s treating team – circumstances in which Public Trustee and Guardian should be appointed rather than an available family member who meets most statutory conditions for appointment – human rights considerations – principles to be followed by decision-maker.
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 39
Guardianship and Management of Property Act 1991 ss 4, 5A, 7, 8, 9, 10, 11
Human Rights Act 2004 ss 5, 6, 11, 12, 30
Mental Health Act 2015 ss 56, 57, 58, 60, 62, 64, 65, 194
Cases cited:Public Trustee of the ACT v Lee [2014] ACAT 69
Tribunal: President G Neate AM
Member J GreaggDate of Orders: 6 September 2017
Date of Reasons for Decision: 6 September 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) GT 2/2017
IN THE MATTER OF AB
TRIBUNAL: President G Neate AM
Member J Greagg
DATE:6 September 2017
ORDER
The Tribunal orders that:
1.The order made by the Tribunal on 18 April 2017 in GT 2 of 2017 appointing the Public Trustee and Guardian as guardian and manager for the protected person is confirmed.
2.The appeal against the order made by the Tribunal on 18 April 2017 (AA 14 of 2017) is dismissed.
………………………………..
President G Neate AM
Delivered for and on behalf of the Tribunal
REASONS FOR DECISION
Introduction
1.The ACT Civil and Administrative Tribunal (the Tribunal) has decided to review a decision made on 18 April 2017 by a Tribunal constituted by three members (the original Tribunal) to appoint the Public Trustee and Guardian (PTG) to be the guardian and financial manager for AB.[1] The review is conducted on the Tribunal’s own initiative but at the prompting of AC, the father of AB.
[1] Because this decision refers to mental health proceedings, the names of the protected person, members of his family, treating doctors and others involved in these proceedings have not been used in these reasons for decision. See ACT Civil and Administrative Tribunal Act 2008 section 39, Mental Health Act 2015 section 194
2.The Tribunal as currently constituted (the review Tribunal) has to decide whether to continue, vary or revoke the order made on 18 April 2017 (the current order). AC has asked the review Tribunal to appoint him as the sole guardian and financial manager in place of the PTG.
Background to the guardianship and management order dated 18 April 2017
3.The current order was made in unusual circumstances.
4.AB was born in 1984. At the time of the review hearing he was 32 years old. Since May 2016, he has been receiving treatment at the Adult Mental Health Unit (AMHU) at the Canberra Hospital. In November 2016, the Tribunal made a Psychiatric Treatment Order (PTO) in relation to him for a period of six months.
5.On 4 January 2017, AC lodged with the Tribunal Registry an application for an order under the Guardianship and Management of Property Act 1991 (GMP Act) appointing him as the plenary guardian for AB. He subsequently advised the Tribunal Registry that he was withdrawing that application.
6.On 16 March 2017, AC lodged a new application seeking to be appointed as guardian and manager. Included in that application (and the previous application) was the following statement:
Because [AB] does not have a guardianship,(sic) our involvement in [AB’s] treatment is seen by some treating psychiatrists as illegal, unwelcome and a breach of privacy.
On many occasions, the treating doctors urge us to apply for a guardianship so that they can welcome us as a legal partners in pursuing of helping [AB] finding a lasting cure for his illness. (Errors in original)
7.On 24 March 2017, a social worker at the AMHU lodged an application for appointment of the PTG as guardian and manager for AB. That application included the following statements:
[AB] has a diagnosis of chronic schizophrenia and was assessed and found having impaired decision-making ability in respect of health, welfare and financial matters. He was supported by parents until now in these areas.
...
[AB] has been in AMHU since May 2016, receiving treatment for his diagnosed mental condition. Treating team have organised an expert opinion on his case and would like to plan for discharge. [AB] doesn’t have capacity to make decision on matters related discharge destination, NDIS support, community supports, financial and welfare matters. Treating would like a guardian and financial manager appointed for [AB] to make decisions on these matters, to facilitate discharge planning and subsequently transition him back to community. (Errors in original)
8.On 12 April 2017, one doctor signed a review report prepared by another treating doctor recommending to the Tribunal that an additional PTO be made.
9.At the hearing on 18 April 2017, the original Tribunal had before it the recommendation for an additional PTO and the two applications for the appointment of a guardian and manager in relation to AB: one by AC, and the other by the social worker. AC provided the original Tribunal with a detailed written statement in relation to why (in his submission) AB needs a guardian and manager, and why AC is the most suitable person to be appointed as the guardian and manager. The original Tribunal heard from AC and AB’s mother, AB’s brother, two treating psychiatrists, the social worker, and the Public Advocate. The PTG was not represented at that hearing, which went for more than two hours.
10.On that day, the original Tribunal made two types of orders in relation to AB:
(a)a PTO for six months from that date; and
(b)an order appointing the PTG as guardian and manager for AB to be reviewed not later than 18 April 2020.
Background to the application for review of the orders dated 18 April 2017
11.On 11 May 2017, AC lodged an application for appeal against the guardianship and management order. He asked that the order appointing the PTG be set aside and that either AC or his wife be appointed as guardian and manager, or that they be appointed jointly as guardian and manager. He attached detailed typed documents in support of the application.
12.Following the making of procedural orders on 31 May 2017, a differently constituted Tribunal (the appeal Tribunal) presided at a hearing on 17 July 2017. AC and his wife were present. Their other son participated by telephone. The PTG was represented. The social worker who applied for the appointment of the PTG as guardian and manager was not present. The appeal Tribunal did not proceed because of evidentiary issues and because the original applicant had not been advised of the hearing.
13.After some discussion with the parties, the appeal Tribunal directed that:
(a)the hearing of the appeal be adjourned to a date to be fixed and be subject to any further order of the Tribunal; and
(b)there be a hearing in relation to whether the order appointing the PTG as the guardian and manager should be varied or should be revoked (the review hearing).[2]
[2] See Guardianship and Management of Property Act 1991 section 19
As a consequence of this approach, other issues that would otherwise have been dealt with on appeal (e.g. in relation to the original Tribunal’s conduct of the hearing) no longer arise.
14.Having decided that the matters in issue be dealt with by the review process rather than the appeal process, the appeal Tribunal made procedural directions for the review hearing to occur on 7 August 2017.
Issues
15.The issues before the review Tribunal are:
(a)Should the order dated 18 April 2017 appointing the PTG as guardian and manager be revoked on the ground that the need for guardianship or management no longer exists?
(b)If an order appointing a guardian and/or a manager is appropriate, what powers should it confer on the guardian and/or manager?
(c)If an order appointing a guardian and/or a manager is appropriate, who should be the guardian and/or manager?
Should the order dated 18 April 2017 be revoked?
16.The first issue raises a number of subsidiary issues:
(a)Is AB someone who satisfies the criteria for the appointment of a guardian (section 7(1)(a))?
(b)Is there a need for a guardianship order (section 7(1))?
(c)Is AB someone who satisfies the criteria for the appointment of a manager (section 8(1)(a))?
(d)Is there a need for a management order (section 8(1))?
Statutory requirements
17.The provisions that govern the answers to those questions are sections 7(1) and 8(1) of the GMP Act.
7Appointment and powers of guardians
(1)This section applies if the ACAT is satisfied that—
(a)someone has impaired decision-making ability in relation to a matter relating to the person’s health or welfare; and
(b)while the person has the impaired decision-making ability—
(i)there is, or is likely to be, a need for a decision in relation to the matter; or
(ii)the person is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the person’s health, welfare or property; and
(c)if a guardian is not appointed—
(i)the person’s needs will not be met; or
(ii)the person’s interests will be significantly adversely affected.
Note 1See s 8C in relation to appointment of a guardian for a child.
Note 2A person’s needs may be met, or the person’s interests protected, under an enduring power of attorney (see Powers of Attorney Act 2006).
8Appointment and powers of managers
(1)This section applies if the ACAT is satisfied that—
(a)someone has impaired decision-making ability in relation to the person’s financial matters or a matter affecting the person’s property; and
(b)while the person has the impaired decision-making ability—
(i)there is, or is likely to be, a need for a decision in relation to the matter; or
(ii)the person is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the person’s health, welfare or property; and
(c)if a manager is not appointed—
(i)the person’s needs will not be met; or
(ii)the person’s interests will be significantly adversely affected.
The parties’ submissions
18.At the review hearing, a current treating doctor, AC and the PTG’s representative (the PTG’s officer) agreed that AB satisfied the statutory criteria as someone for whom a guardian and manager could and should be appointed.
Consideration and conclusion
19.Although the parties agree on that matter, it is the review Tribunal that must be satisfied that the criteria in sections 7(1) and 8(1) of the GMP Act have been met. We have considered:
(a)the Tribunal Review Report of two treating doctors dated 12 April 2017, in relation to the PTO, described AB as a person with a “severe chronic schizophrenia, virtually all aspects” of whose functioning have been affected. As a person with “long-standing treatment-resistant schizophrenia,” he lacked decision-making capacity in relation to decisions about his treatment, care or support;
(b)the written statement dated 22 June 2017 in which two treating doctors wrote that during AB’s current admission to the AMHU he had demonstrated negligible capacity to make decisions on matters related to discharge, destination, National Disability Insurance Scheme (NDIS) support, community supports, financial and welfare matters;
(c)statements by a current treating doctor at the review hearing on 7 August 2017 that AB still meets the relevant criteria, and the treating team has not been able to get any communication with him about financial matters, applying for NDIS support, or his accommodation.[3] AB has a relapsing and remitting illness that seems to be following a chronic course, and it is likely that he will have some impairment for the rest of his life;[4]
(d)the written submissions of the PTG that when AB is ready for discharge there are likely to be decisions about such matters as NDIS, his accommodation, and ongoing care and support.
[3] Transcript of proceedings page 6
[4] Transcript of proceedings page 54
20.On the basis of that and other material, the review Tribunal, is satisfied that:
(a)AB has impaired decision-making ability in relation to matters relating to his health or welfare, and in relation to his financial matters and matters affecting his property;
(b)while he has the impaired decision-making ability, there is likely to be a need for a decision or decisions in relation to those matters; and
(c)if a guardian and manager are not appointed, his needs will not be met and his interests[5] will be significantly adversely affected.
[5] For the definition of a person’s ‘interests’ see Guardianship and Management of Property Act 1991 section 5A
21.Consequently, AB is a person for whom a guardian and manager should be appointed.
What powers should be conferred on the guardian and/or manager?
Statutory provisions
22.Section 7 of the GMP Act also provides:
(2)The ACAT may, by order, appoint a guardian for the person, with the powers that the ACAT is satisfied are necessary or desirable to make decisions for the person in accordance with the decision-making principles.
NoteThe powers that may be given to a guardian are restricted under s 7B.
(3)The powers that may be given to a person’s guardian include the following powers:
(a)to decide where, and with whom, the person is to live;
(b)to decide what education or training the person is to receive;
(c)to decide whether the person is to be allowed to work;
(d)if the person is to be allowed to work—to decide the nature of the work, the place of employment and the employer;
(e)to give, for the person, a consent required for a medical procedure or other treatment (including medical research or low-risk research but not including a prescribed medical procedure or medical treatment mentioned in paragraph (f));
NoteFor when a guardian may consent to a person participating in medical research or low-risk research, see pt 2B (Medical research and low-risk research).
(f)to give, for the person, a consent required for medical treatment involving treatment, care or support under the Mental Health Act 2015 (other than a prescribed medical procedure);
NoteFor provisions relevant to a guardian with power under this paragraph, see s 70A (Restrictions on consent by guardian to mental health treatment, care or support).
(g)to bring or continue legal proceedings for or in the name of the person.
23.Section 8 of the GMP Act also provides:
(2)The ACAT may, by order, appoint a manager to manage all, or a stated part of, the person’s property, with the powers that the ACAT is satisfied are necessary or desirable to allow the manager to make decisions in relation to the property, in accordance with the decision-making principles.
NoteThe ACAT’s power to appoint a manager is restricted under s 8A.
(3)The powers that may be given to a person’s manager are the powers that the person would have if the person were legally competent to exercise powers in relation to the person’s property.
24.Section 11 is also relevant.
11Powers to be least restrictive
The powers given to a person’s guardian or on a manager of a person’s property are to be no more restrictive of the person’s freedom of decision and action than is necessary to achieve the purpose of the order.
NoteAlso, the guardian or manager should exercise the powers in accordance with the decision-making principles (see s 4).
The current order
25.The current order provides that the PTG has the following powers as guardian for AB (the protected person):
(a)to decide where, and with whom the protected person is to live;
(b)to apply for and implement an application for support under the National Disability Insurance Scheme.
(c)to give any consent required for a medical procedure or other treatment (other than a prescribed medical procedure) that cannot be provided under a psychiatric treatment order made under the Mental Health Act 2015.
(d)to make other personal decisions needed to ensure the protected person’s health and welfare needs are met and to protect him from unreasonable risks to his health and welfare;
(e)to liaise with the protected person’s family regarding the protected person’s treatment, care and support.
26.The current order also provides that the PTG, as manager of all of the property of AB, has all the powers the protected person would have been entitled to exercise if he were legally competent to exercise powers in relation to his property himself, having regard to the views of his family.
The parties’ submissions
27.In its written submission dated 30 June 2017[6], the PTG stated that when AB is ready for discharge there are likely to be decisions about such matters as NDIS support, his accommodation, and ongoing care and support. At the time of that submission:
(a)consent for AB’s treatment was provided under the PTO and there had been no decisions or consents required from the PTG;
(b)the PTG had visited AB and liaised with the AMHU treating team about his treatment and care needs and about completing an NDIS application;
(c)the PTG had liaised with AC who initially included the PTG in his daily “observations” emails to the treating team (a practice which then ceased);
(d)the PTG had met with the treating team and AB’s parents, and AC raised concerns about AB being discharged from the hospital and being placed in a Step Up Step Down facility;
(e)AB was not ready for discharge;
(f)it was unclear when he would be ready for discharge; and
(g)the treating team had not discussed discharge planning with the PTG.
[6] The statement was prepared for the hearing of the appeal against the original decision
28.At the review hearing, the PTG’s officer advised the review Tribunal that the PTG had not made any decisions but, based on the recommendations of the treating team, the need for decisions was “upcoming” and an order was required.
29.In their written statement dated 22 June 2017, two treating doctors wrote that during AB’s current admission to the AMHU:
(a)AB had demonstrated negligible capacity to make decisions on matters related to discharge, destination, NDIS support, community supports, financial and welfare matters;
(b)on the very few occasions AB had expressed any view, he had deferred to his father; and
(c)because the family have refused to participate in the process and work with the team, the treating team had no choice but to apply for the appointment of the PTG as guardian and financial manager to make decisions on these matters and to facilitate discharge planning to enable AB to transition back to the community.
30.Subject to one qualification, AC, the PTG and the treating team agreed at the review hearing that:
(a)the powers conferred on the guardian and manager by the current order should be continued; and
(b)no other powers (including any of the additional types listed in section 7(3) of the GMP Act) should be added in any new or varied order.
31.The only qualification is a logical one. If AC were to be appointed as the guardian and manager, the current order would be varied so that:
(a)the guardian would not be required “to liaise with the protected person’s family regarding the protected person’s treatment, care and support”; and
(b)the manager would not be obliged to exercise his powers “having regard to the views of the protected person’s family.”
Consideration and conclusion
32.Having regard to the evidence and submissions to the review Tribunal and the operation of section 11 of the GMP Act, we are satisfied that an order should confer on the guardian and manager the same powers as are contained in the current order (subject to the continuation or deletion of the qualifications quoted at [31]).
If an order is appropriate, who should be the guardian and/or financial manager for AB?
33.At the heart of the review is a dispute as to who is the most appropriate person to be the guardian and manager of AB. To answer this question requires close consideration of the statutory provisions governing who may be appointed (as set out in sections 9 and 10 of the GMP Act), and the evidence before the review Tribunal at the date of the review hearing. The GMP Act provides:
9Who may be appointed
(1) The public trustee and guardian or an individual may be appointed as a guardian.
(2) The public trustee and guardian, a trustee company or an individual may be appointed as a manager.
(3) A person may be appointed both guardian and manager, and people may be appointed jointly as guardians or managers, or both.
(4) The public trustee and guardian must not be appointed as a person’s guardian if an individual who is otherwise suitable has consented to be appointed.
(5) The public trustee and guardian or a trustee company must not be appointed as a manager of a person’s property if an individual who is otherwise suitable has consented to be appointed.
10Considerations affecting appointment
(1) A person must not be appointed as a guardian or manager unless the person consents in writing to the appointment.
(2) A person (except the public trustee and guardian or a trustee company) must not be appointed as a guardian or manager unless the person is an adult and has informed the ACAT on oath whether the person—
(a)has been convicted or found guilty of an offence involving violence, fraud or dishonesty; or
(b)has been, either in the ACT or elsewhere, refused appointment as a guardian or manager, or removed from office as a guardian or manager; or
(c)is bankrupt or personally insolvent (and, if so, has given particulars to the ACAT).
NoteBankrupt or personally insolvent—see the Legislation Act, dictionary, pt 1.
(3) Someone (other than the public trustee and guardian) may be appointed as a guardian or manager only if the ACAT is satisfied that the person will follow the decision-making principles and is otherwise suitable for appointment.
(4) For subsection (3), the matters the ACAT must take into account include—
(a)the views and wishes of the person (the protected person) for whom a guardian or manager is to be appointed; and
(b)the desirability of preserving existing relationships with family and any other carers; and
(c)whether the proposed guardian or manager is compatible with the protected person; and
(d)whether the proposed guardian or manager lives in the ACT; and
(e)whether the proposed guardian or manager will be available and accessible to the protected person; and
(f)the nature of the functions to be exercised under the order and whether the proposed guardian or manager is competent to exercise them; and
(g)whether the interests and duties of the proposed guardian or manager are likely to conflict with the protected person’s interests to the detriment of the protected person’s interests.
(5) The interests and duties of the domestic partner or a relative of a person must not be taken to be likely to conflict with the interests of the person only because of the fact of being the domestic partner or relative.
34.Section 10(3) states that someone other than the PTG may be appointed as guardian or manager only if the Tribunal is satisfied that the person will follow the “decision-making principles” and is otherwise suitable for appointment. The decision-making principles are set out in detail in section 4 of the GMP Act. That section is quoted later in these reasons for decision in the discussion about whether AC is, as he stated, capable of following and adhering to the decision-making principles (see [159] to [173]).
Evidence and submissions of treating team
35.As noted earlier, the treating team considered it had no choice but to apply for the PTG to be appointed or guardian and manager. The treating team does not support the appointment of AC.
36.The statement dated 22 June 2017 signed by two treating doctors described in some detail the relationship between the treating team and AB’s family and the implications of that relationship for his treatment.
37.Although, by the time of the review hearing, some of the circumstances had changed (discussed below), it is appropriate to set out the concerns expressed in the doctors’ statement and the reasons for those concerns.
(a)AB’s parents express a wish to be his primary carers and, although the preference of the treating team was to work with them in a collaborative way, his family “consistently responded adversely regarding any suggestion or constructive changes to his medication and psychosocial/behavioural program and have been obstructive to a large extent to AB receiving appropriate evidence-based psychiatric care;”
(b)the family has been “fixated on medication, disregarding other biopsychosocial aspects of care that could promote and hasten [AB’s] recovery” (e.g. their refusal of the behavioural management approach plan which was set out by a psychologist to help AB be more proactive and interactive with others);
(c)the family has declined the NDIS package application that the treating team’s social worker attempted to submit which would “assist in transitioning AB to community care, once his condition has stabilised;”
(d)it has been “very difficult” to ascertain or explore options for rehabilitation for AB because of his parents’ “opposition to every suggestion made by the team;”
(e)during periods when AB showed a reasonable level of improvement, his parents declined requests for him to have overnight leave with them (giving various reasons) and at no time had the family acknowledged the necessity for AB to have leave from the ward overnight to foster his confidence and independence and to reinforce gains in clinical state when these have been apparent;
(f)AC has been “repeatedly emailing the treating team, attempting to impose his own idiosyncratic opinions about AB’s medication onto the treating team and has sought to intimidate clinical team members through making false claims about their motives, suggesting they wish to punish the family or make [AB] more disabled and to mistreat [AB];”
(g)AC has sent “many complaints and defamatory claims including to the Director General of Health, expressing anger and threats to complain to even higher authorities in order to influence or undermine the management plan of the treating team;”
(h)all attempts to explain the management plan to the family “on multiple occasions by different members of the clinical staff over many months have been unsuccessful with no acknowledgement of the key elements of the management plan by the family;” and
(i)the family’s focus “remains centred around” AC’s “idiosyncratic beliefs about psychotropic medications.”
38.In light of those statements, the two treating doctors expressed their belief that the members of AB’s family “unfortunately are not in a position to act in [AB’s] best interests from the medical and social perspective due to their inflexibility, high expressed emotion, lack of trust and inability to understand the central importance of a consistent and comprehensive psychosocial rehabilitation management plan.”
Evidence and submissions of Public Trustee and Guardian
39.The written submissions of the PTG dated 30 June 2017 were in the context that the applicant for the order made on 18 April 2017 appointing the PTG as guardian and manager was not involved in the appeal proceedings for which those submissions were prepared. The PTG outlined some concerns about its dealings with AC and conveyed the views of the treating team.
40.The PTG’s officer explained that the PTG (not an individual employee) is appointed as guardian for a protected person. Individuals within the guardianship team (such as that officer) work on behalf of the PTG as guardians. In that capacity, she had spoken to AC about a possible application for NDIS support. [7]
[7] Transcript of proceedings page 50
41.The PTG noted that:
(a)although AC initially included the PTG in his daily “observations” emails to the treating team, he had ceased to do so (while continuing to send the emails to the treating team);
(b)at a meeting with the treating team and the PTG’s representative soon after the PTG was appointed, AC stated that the PTG had already made up its mind to discharge AB and was colluding with the treating team;
(c)later, AC wrote to the PTG advising that he and his wife had been banned from visiting their son and requested assistance from PTG to investigate – but when the PTG advised which officer would follow-up the issue, AC advised that he did not want her to follow-up and only wanted an officer who he named to handle things regarding his son;
(d)AC advised that he was not comfortable writing to the guardian’s email address but wanted a direct email address for his nominated officer.
42.The PTG expressed concern about, and did not support, AC being appointed guardian due to the impact of his involvement on AB’s psychiatric treatment. The PTG also conveyed the strong opposition of the treating team to the appointment of AC as such an appointment would make treating AB “unworkable.”
Evidence and submissions of AC
43.In summary, AC submissions emphasise that:
(a)he meets the statutory criteria for appointment as AB’s guardian and manager; and
(b)the appointment of the PTG as guardian and manager is unnecessary.
In making those submissions, he also referred to matters such as human rights considerations and the operation of the decision-making principles in section 4 of the GMP Act.
44.AC submitted that he is a suitable person who has consented to be appointed as a guardian and manager for his son and therefore the original Tribunal should not have appointed the PTG as guardian and manager.[8] He submitted that he meets all the considerations listed in section 10(4) of the GMP Act because:
[8] See Document D1 pages 1-3
(a)he is willing, able, suitable and has consented to be appointed as a guardian and manager for his son AB;
(b)he has the support of his wife, his other son and his daughter to be appointed as the guardian and manager (which support is evident by signed letters provided to the Tribunal);
(c)he has informed the Tribunal on oath that:
(i) he has not been convicted or found guilty of an offence involving violence, fraud or dishonesty;
(ii) he has not been removed from office as a guardian manager;
(iii) he has not been declared bankrupt or personally insolvent;
(d)he is capable of following and adhering to the decision-making principles set out in section 4 of the GMP Act and will ensure that he will always take into account the views and wishes of AB as well as the desirability of preserving existing relationships with AB’s family and any other carers;
(e)he is compatible with AB as he understands what his son has been going through, and has always been there to support AB since he was diagnosed with mental illness 17 years ago;
(f)he lives in Canberra and will be available and accessible to AB whenever and wherever AB needs him;
(g)he is competent to exercise his duties as AB’s guardian and manager – having an Honours degree and a Master of Business Administration, and having worked as a public servant for 28 years (from 1985 until 2013) reaching a director position with a Commonwealth Government Department, and currently working for another Department as a contractor;[9]
(h)he will make sure that in performing the duties of guardian and manager it would not conflict or disadvantage his son’s interests;
(i)he “worked and will continue to work with past, current and future health professionals in the best interest of [AB], and there will be no conflict of interest as our collective interest is to see [AB] leads a better quality of life.”
[9] The description of his current position is set out in some detail in the signature block on the many emails that were provided to the Tribunal in relation to these proceedings
45.AC provided the review Tribunal with a detailed written statement setting out the degree to which he, his wife and AB’s two siblings have provided “unwavering daily support and care” for AB since he was diagnosed with a mental illness in 2000.[10] For example, AC wrote:
From (20 May 16 – present), [AC] and his family never stopped visiting [AB] daily and working with the treating team to help [AB] recover. While [AB] experiencing immobility, mutism and physical weakness; [AB’s] family continues to provide him with food on a daily basis.[11]
[10] See Document D1 pages 3-6
[11] Document D1 page 5 paragraph (p)
46.AC also set out detailed written responses to what he submitted were claims presented to the original Tribunal by the treating team. He described those claims as “simply unfounded and one sided allegations” which were “neither true nor backed up by explicit evidence.” It is not necessary to set out in full the text of his responses. What follows is a summary of the eight allegations and the responses to them drawn from the various documents provided by AC to the review Tribunal,[12] supplemented as appropriate with statements made at the review hearing.
[12] See Document D1 pages 8-9, 13-15, 22-31 and the documents referred to and provided in Document D2
47.First, AB’s family has become intrusive and obstructive towards AB’s medication and care. According to AC, he and the family have been neither obstructive nor intrusive to the care or medication prescribed for and administered to AB by the treating team. The family’s involvement “has been and will continue to be confined to:”
- Playing an effective role in observing [AB’s] reaction to new medication or changes to existing medication.
- Reporting our daily observations to the treating team, on [AB’s] reaction to new medication or changes to existing medication.
- Informing the treating team of the knowledge we have accumulated since [AB] became mentally ill in 2000 and on what medications worked for [AB] and what medications did not work. The intention behind this information is to act as a valuable input for the treating team to steer their treatment of [AB].
- Voicing our concern first to the treating team if medication ... is found to deteriorate [AB’s] mental and physical condition manifested in making him unable to control his agitation, anger, and frustration ...
- If our voiced concern kept to be discarded and ignored, and in the best interest of [AB] we have voiced our concern to higher health authority
- our involvement is simply providing input to the treatment team who makes decisions on medication, and reporting concerns if medication is not delivering the desired result and instead causing [AB] unnecessary pain and suffering. Such involvement is neither intrusive nor obstructive.
48.The submission asks how the family can be “intrusive and obstructive” if they do not have the legal authority to obstruct decisions made by the treating team. It also asks why the current treating team considers their involvement is intrusive or obstructive when the initial members of the treating team found their engagement to be “constructive and helpful.” It also asked why, if the family are obstructive, the treating team sought their input on how best to administer the dosage of AB’s current medication (see email from AC dated 25 May 2017).
49.Second, AB’s family have become resistant and obstructive to any constructive changes to AB’s medical treatment and psychosocial/behavioural program. According to AC, the family never became resistant and obstructive to any constructive changes to AB’s medical treatment and psychosocial/behavioural program. He asserts that the reason behind this accusation is the treating team’s belief that the family discourages AB from attending such a program, when the real reason is AB’s reluctance to participate in such programs “despite our continued encouragement for [AB] to do so.” Further, he asserts, a current treating doctor had talked on separate occasions about providing a psychologist and an occupational therapist to work with AB. Although the family “welcomed that idea,” they heard nothing and did not see any engagement between AB and such people until some time after each option was raised with them.
50.Third, AB’s family is unwilling to take advice on the need for a combination of medication and psychosocial and behavioural management in the least restrictive environment - including their opposition for AB to join the Step Up Step Down program. According to AC, in January 2017 AB indicated clearly and loudly in the presence of a nurse that he did not wish to be pushed into the Step Up Step Down program. AB also said on several occasions that when he was ready to be discharged he would like to be discharged to his own accommodation under the care of his family (see AC’s email dated 5 January 2017).
51.Fourth, AB’s family is unwilling to apply for NDIS. AC asserted that the family has never refused to apply for support under the NDIS, but they emphasised treatment through medication as the first line of preparing AB for discharge. AC asserted in writing and at the review hearing that there is a requirement that, in order to apply for NDIS support, there be a medical assessment that AB is permanently impaired. To date, no such assessment has been made. In contrast, the medical recommendations were geared towards treatment and not towards applying for NDIS for the purpose of discharging AB to a rehabilitation institution. However, “[AB’s] family will more than happy to apply for the NDIS once appointed guardian and manager over AB.”
52.At the review hearing, AC said that he is 100 per cent for NDIS support, and as guardian he would want power to apply for it.
53.Fifth, AB’s family opposed the transfer of AB to the Neuropsychiatry Institute (NPI) of the Prince of Wales Hospital in Sydney. AC acknowledged that his family requested an expert second opinion because the doctors in the treatment team “were determined to discard our input and our concern regarding the deteriorated mental and physical condition” of AB. The family raised concern over the interstate transfer for that purpose because they thought that an expert second opinion could be provided in Canberra and did not require a Tribunal order authorising the transfer. They were also concerned about the short notice of the proposed transfer.
54.AC stated that, rather than oppose the transfer, he and his wife attended a hearing at the Tribunal on 13 February 2017 to discuss the transfer of AB to the NPI. Having raised specific concerns (regarding what tests the NPI would conduct, and whether it was appropriate for AB to be transferred while he was taking “unworkable medication”) and despite being “not clear about the real intention behind the transfer,” they did not object to the transfer because “we did not want to be an obstacle in [AB’s] recovery.”
55.AC detailed concerns about aspects of AB’s treatment at the NPI (some of which he described as “brutal and barbaric”), the assessment and recommendations in relation to AB prepared by the specialists in Sydney, and AB’s transport back to Canberra (during which he was allegedly “treated like a criminal and like a wild animal”). We note, however, that a report dated 19 May 2017 (prepared in response to correspondence from AC about the treatment of AB at the NPI and his transport to Canberra) did not support, and indeed refuted, some of the assertions made by AC. Despite that report being provided to the Tribunal by AC, he repeated his allegations in submissions to the review Tribunal.
56.Sixth, AB’s family have declined requests for AB to have overnight leave. According to AC:
(a)AB’s family “never declined requests for [AB] to have overnight leave;”
(b)when the treating team asked them to take him on overnight leave, AB’s behaviour was “unstable, unpredictable, used to be in heightened anger and agitation and he used to shout at his sister, brother and his parents;”
(c)the family informed the treating team that, because his overnight leave could present safety risks for his family members and to himself, they were not in a position (out of fear) to prevent that if it occurred;
(d)during the weekly meeting with the treating team on 31 March 2017, it was agreed that AB’s family would be the judge of whether or not it was safe to take him for overnight leave (as recorded in an email from AC on 3 April 2017).
57.At the review hearing, a current treating doctor advised the review Tribunal that more recently, AB has been able to have some protracted periods at home with his family. The doctor was pleased for AB and thought that was good for AB’s morale. He hoped that AB would come out of the ward “quite soon ... sooner rather than later,” and assumed (in the absence of communication from AB) that AB might like to live at home with his parents or possibly in his flat nearby.[13]
[13] Transcript of proceedings page 6
58.That development is illustrated by an email dated 24 July 2017, in which AC stated that they took AB for weekend leave and cared for him from Friday 21 July 2017 until lunchtime on Monday 24 July 2017. He noted that AB had limited mobility and that AB’s interaction with the family was mainly about distant past events. He described AB as being “very compliant in taking his medication on time” and stated that AB “does not present a safety risk for himself and for his family.”
59.At the review hearing, AC reiterated his written statements summarised above, and AB’s brother stated that the family does not have any control or influence over AB in terms of when he decides to come home with the family.[14]
[14] Transcript of proceedings page 44
60.Seventh, AB’s family will not support AB to take his medication when he is discharged to the community. According to AC:
(a)AB’s family have always been caring and supporting of him, and they “have never discouraged [AB] from taking his medication,” and “they will never reject any medication prescribed” for him, whether he lives with his parents or on his own;
(b)AB’s family “will always support [AB] to take his medication when he is discharged to the community.”
61.Eighth, AB’s family, in particular AC, taught a named doctor[15] what medication to give AB. In response, AC asserts that AB’s family never claimed to teach that doctor what medication to give AB or that the doctor was learning from them. Rather, he stated that, on one occasion when the doctor informed them about his proposal to give AB a particular medication, they informed him of adverse side-effects and the doctor decided not to try that medication on AB. AC continued:
The treating team have given [AB] medication known to be unsuitable to [AB] and known to make [AB] unstable. The medical team failed to check his medical history and failed to heed our warnings that certain medication combinations make [AB] unstable. Each time [AB] was forcefully injected and/or transferred to HDU this can be directly attributable to prescribing [AB] an unsuitable medication combination pre-document in his medical history as causing [AB] agitation and stability problems. The family believes we have a right to highlight this to the treating team and this must not be confused and misrepresented by the treating team as interference.[16]
[15] The doctor was an initial member of AB’s first treating team and the family stated that they and AB had a positive relationship with him
[16] Document D1 page 15
62.In another document provided to the review Tribunal, AC outlined his submissions in reply to the submissions made by the PTG and addressed a report prepared by two treating doctors. Much of that document traverses issues dealt with previously by AC and summarised above. The review Tribunal has considered that document and the attachments to it as well as other documents provided by AC, many of which are quoted or cited later in these reasons for decision.
63.AC also made submissions about why he considered the appointment of the PTG as guardian and manager for AB is unnecessary. He contended that:[17]
(a)he is suitable and available, whereas the PTG’s availability is limited and restricted;
(b)the PTG lacks in-depth knowledge about AB’s extensive medical history over the last 17 years, which may result in the PTG making decisions that are not in AB’s best interests;
(c)PTG staff have limited ability and resources to employ in their duties towards AB;
(d)the PTG’s assigned guardian(s) are not usually there to observe AB’s daily progress;
(e)the PTG’s assigned guardian(s) are not there to take AB on daily or overnight leave;
(f)the PTG will not appoint a dedicated guardian and so the guardian looking after AB will not have sufficient depth of knowledge and extensive medical history to provide doctors with information about what is likely to work and not work for AB. Rather the PTG are likely to accept and rubber stamp all advice received from the treating team. From the events highlighted in documentation provided by AC this can be very dangerous and lead to AB being given medication which makes him unstable and vulnerable to attack; and
(g)the PTG should be appointed as the last resort.
[17] Document D1 page 15
64.At the review hearing, AC reiterated those submissions and added that:
(a)there was little liaison between the PTG and AB’s family regarding AB’s treatment, care and support, particularly in the period when AB was unable to leave his room;
(b)the family’s dedication to serve AB far exceeds that of the PTG;
(c)AB is more likely to talk to his family and less likely to talk to the PTG, and that will lead to his wishes being catered for better through his family;
(d)the continued appointment of the PTG will constitute ongoing risks for AB that his family is not prepared to accept;
(e)the appointment of the PTG rather than the family is inconsistent with provisions of the Human Rights Act 2004 (considered later on these reasons for decision).[18]
[18] Transcript of proceedings pages 37, 47-48
Our observations about aspects of those submission are set out later in these reasons for decision (see [175]).
Consideration of statutory criteria for guardian and manager
65.In order to deal comprehensively with the submissions of AC, the treating team and the PTG, it is appropriate to consider in some detail:
(a)the statutory criteria for the appointment of a guardian and manager[19] including the statutory prohibition on the appointment of the PTG where an individual who is “otherwise suitable for appointment” has consented to be appointed (section 9(4), (5));
(b)whether, if he were appointed as guardian or manager, AC’s interests are likely to conflict with AB’s interests to the detriment of AB’s interests;
(c)human rights considerations;
(d)the operation of the decision-making principles in the circumstances of this case.
[19] Quoted at [33]
66.Section 10(2) contains criteria that must be met before a person (other than the PTG) can be appointed. There is no issue that AB’s father satisfies those criteria.
67.Although the GMP Act expressly contemplates that either the PTG or an individual may be appointed as a guardian and/or a manager, the GMP Act also makes it clear that if in a particular case a choice between the two can be made, the categories of potential appointees are not equal.
68.In Public Trustee for the ACT v Lee[20] an appeal Tribunal considered the operation of the predecessor to the current version of section 9 of the GMP Act. That appeal Tribunal referred to the terms of section 9(4) and (5) and to the Explanatory Statement of the 1991 Bill which, it wrote, “clearly indicated that where there is a suitable, natural person available such as a relative or close friend, that person takes precedence in terms of appointment over a public official, or in management matters, over a trustee company.”[21]
[20] Public Trustee for the ACT v Lee [2014] ACAT 69
[21] Public Trustee for the ACT v Lee [2014] ACAT 69, [8], [9], [13]
69.Section 10(3) provides that someone (other than the PTG) “may” be appointed as a guardian or manager “only if” the Tribunal is satisfied that:
(a)the person will follow the decision-making principles (set out in section 4 of the GMP Act); and
(b)is “otherwise suitable for appointment” (section 10(3)).
70.The key criterion in relation to an individual is that they are “otherwise suitable” for appointment (section 9(4), (5), section 10(3)). When deciding whether a person is “otherwise suitable”, the Tribunal must take into account the factors listed in section 10(4).
71.Although the Tribunal “must take into account” those listed matters, they can affect, but need not determine, whether a particular person is suitable for appointment as a guardian or manager.
72.In many instances it will be obvious that an individual will follow the decision-making principles and is “otherwise suitable” for appointment.
73.The Tribunal must consider closely the matters listed in the GMP Act and may consider other matters, if the suitability for appointment of an individual is contested. The present proceeding is such a case.
74.As noted earlier, the review Tribunal accepts that AC:
(a)has consented in writing to be appointed as AB’s guardian and manager (section 9(4), (5));
(b)is an adult (section 10(2));
(c)has informed the Tribunal on oath that he:
(i) has not been convicted or found guilty of an offence involving violence, fraud or dishonesty;
(ii) has not been removed from office as a guardian manager;[22] or
(iii) is not bankrupt or personally insolvent (section 10(2));
[22] He was, however, refused appointment as guardian and manager in the previous proceedings that resulted in the current roles
75.We are also satisfied that AC:
(a)is compatible with AB (section 10(4)(c));
(b)lives in the ACT (section 10(4)(d));
(c)will be available and accessible to AB (section 10(4)(e)); and
(d)is competent to exercise the functions of a guardian and manager (section 10(4)(f)).
76.The review Tribunal also notes the evidence of a close and continuing relationship between AB and his parents, and takes into account the desirability of preserving the existing relationship with AB’s family (section 10(4)(b)).
77.The review Tribunal is not aware of the views and wishes of AB in relation to the appointment of a guardian or manager, or who should be appointed as a guardian or manager (section 10(4)(a)). As noted earlier, he has had little or no verbal communication with others in recent months. The Tribunal was advised that AB was told about the review hearing. However, he did not attend. At the review hearing AC and his wife, a treating doctor and the PTG’s officer were unable to say what his views and wishes are.
78.The question for the review Tribunal is whether, despite the findings that AC meets those statutory criteria, he is “otherwise suitable” for appointment as the guardian and manager for AB. To answer that question it is necessary to consider AC’s relationship with the treating team.
79.Later in these reasons we consider whether the interests and duties of AC are or are not likely to conflict with the interests of AB to the detriment of AB’s interests (section 10(4)(g), (5)).
Relationship with carers
80.As well as the considering the factors listed above, the review Tribunal must take into account the desirability of preserving existing relationships with “any other carers” (section 10(4)(b)). Section 6 of the GMP Act provides:
6Meaning of carer
In this Act:
carer—a person is a carer of someone else (the dependant) if—
(a)the dependant is dependent on the person for ongoing care and assistance; and
(b)the person cares for the dependant otherwise than because of—
(i)a commercial arrangement; or
(ii)an arrangement that is substantially commercial.
Example of a carer
Ms S suffers from a severe brain injury because of a car accident and requires constant care. Her spouse, 2 children aged 18 and 11 and a family friend share her care and would each be a ‘carer’.
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
81.AB has been resident at the AMHU at the Canberra Hospital almost continuously since 20 May 2016. In that period he has been, and remains, dependent on the treating team for ongoing care and assistance. The treating team cares for him otherwise than because of a commercial arrangement. Consequently, in deciding who is most suitable to be the guardian and manager for AB, the review Tribunal must take into account the desirability of preserving the existing relationship between him and the treating team.
82.At this stage, it is not possible to predict how long AB will remain dependent on that team for ongoing care and assistance. Even if he transitions out of the AMHU to other accommodation (with his family or ultimately his own unit), he will still be dependent for the foreseeable future, at least to some degree, on the treating team for ongoing care and assistance.
83.As noted earlier:
(a)the treating team contended that, for various reasons, members of the AB’s family are not in a position to act in AB’s best interests, and the team does not support the appointment of AC as guardian and manager (see [38]); and
(b)AC sought to refute all imputations against him (see [46]-[61]).
84.It is appropriate, indeed necessary, to look at examples of the correspondence between AC and the treating team and other medical professionals, including the Chief Psychiatrist of the ACT, to test his refutations, particularly in relation to:
(a)the treatment provided to AB at the AMHU;
(b)where AB might live before he is discharged from the AMHU (including overnight visits) and after his discharge; and
(c)applications for support for AB as part of the NDIS.
85.In undertaking this exercise, we reiterate what we said at the review hearing that this review Tribunal is not reviewing the PTO or the nature of the treatment being provided to AB under that order.[23] These proceedings are confined to questions about the possible variation or revocation of the guardianship and management order made on 18 April 2017. Consequently, we express no views about the adequacy of the treatment that was provided or is being provided by the treatment team. Rather, we are concerned to assess:
(a)the accuracy of some of AC’s responses to what he perceived as allegations made against the AB’s family (and him in particular); and
(b)the relationship between the treatment team and the AB’s family (particularly AC),
[23] The Mental Health Act 2015 makes it clear that the chief psychiatrist is responsible for the treatment, care or support of a person to whom a psychiatric treatment order applies (section 62(1)) and that, in making a mental health order in relation to a person, the Tribunal must not order a particular form of treatment, care or support (section 57)
as factors relevant to deciding whether, by reference to the criteria set out in the GMP Act, AC is “otherwise suitable” for appointment as the guardian and manager of AB in place of the PTG.
86.The following observations and quotes are drawn from sets of email correspondence that AC provided to the review Tribunal. We do not know whether those documents comprise a complete record of what passed between AC and the treating team and other recipients of his emails. The absence of emails or letters in reply might indicate that the recipients did not respond in writing. We do not know whether, or how, they responded. Nonetheless, the numerous items of correspondence help the review Tribunal gain a picture of AC’s views and the views of family members recorded by him.
Critique by family of the medical treatment provided
87.The correspondence that AC provided to the review Tribunal illustrates in detail the nature of the disagreement between AB’s family and the treatment team concerning the medication being administered from time to time by the treatment team and, less frequently, other aspects of the treatment program. The correspondence spans the period from 19 December 2016 until 24 July 2017. The following excerpts from some of the emails illustrate the nature of the concerns.
88.On 19 December 2016, AC provided a brief background to AB’s mental illness since the age of 16, including periods of hospitalisation and the administration of antipsychotic medications. He referred to his “tens and tens of emails” sent to a previous doctor (but apparently never acknowledged by him) “seeking to work together as a team to help [AB] recover painlessly and quickly.” He noted that, in May 2016, AB had been diagnosed with a Catatonia condition (which caused him to suffer immobility, mutism and loss of appetite) on top of his bipolar/schizophrenia. AB was admitted to the AMHU on 20 May 2016 and experienced a “productive” relationship with the treating team of that time which was characterised as involving a “cooperative approach rather than confrontationist” and was respectful, inclusive, motivational, inspiring, accommodating, tolerating and compassionate. That relationship continued until 21 October 2016. The relationship with the second set of members of the treating team was described as “unproductive” and the approach was described as “confrontationist rather than cooperative,” and characterised by “disengagement” with the family when it came to formulating or adjusting the treatment plan, a “devaluing” of the family’s written daily observations of AB, and a “reward and punishment approach” to try to change AB’s behaviour. Among other things, AC sought the replacement of the consultant treating psychiatrist because she was “pursuing a confrontationist approach when dealing with [AB] and his family.” He stated that the new psychiatry consultant “must pursue” similar approaches to that used initially.
[38] Transcript of proceedings pages 8, 40
169.It was put to the doctor that he previously had concerns about AB living with his family because they might not give AB his medication. The doctor stated that he held that concern because of the nature of AC’s email traffic with the treatment team expressing disagreement about the treatment they were giving AB. The doctor continued, “I concluded from that he might not support it, but now he’s supporting the treatment we’re giving him so far as I can see, so ... Things have moved on.”[39]
[39] Transcript of proceedings pages 57-58
170.Although it is a “complicated situation” which is to do with “the way different people react in the circumstances,” the doctor said that “the evidence is that the current arrangements seemed to be working in [AB’s] interests.” He thought that since the oversight from an outside agency, there was at least a perceived change in attitude in relation to the interactions of AB and his family and the treating team.[40] The doctor expressed concern that if the current arrangements were to change, “we might go back to square 1.” [41]
[40] Transcript of proceedings page 40
[41] Transcript of proceedings page 40
171.AC and AB’s brother took issue with the doctor’s assessment of the current situation. AB’s brother pointed out that, in their report dated 22 June 2017, two treating doctors described “periods of improvement alternating with periods of deterioration” in AB’s mental condition in the period of his admission to the AMHU.[42] AB’s brother challenged the inference drawn by the doctor from the change in circumstances since the guardianship order was made, stating that the family has no control or influence over AB in terms of when he decides to come home with them.[43] He described as “fundamentally flawed” any statement that the grant of guardianship to the PTG allowed AB to go on overnight leave and that if a family member or members were made guardians things would go back to square one.[44]
[42] Transcript of proceedings page 43
[43] Transcript of proceedings page 44
[44] Transcript of proceedings page 44
172.AC reiterated that previously the family had not agreed to overnight visits because AB was in a very agitated state and was a safety risk.[45] We understand AC to be saying that the family did not simply refuse to take AB on overnight visits, but did so for reasons that were given to the treating team at that time.[46]
[45] Transcript of proceedings page 44
[46] Transcript of proceedings page 45
173.Despite some recent changes in the interactions between AB’s family and the treating team, we reiterate that we are satisfied that AC might have difficulty following all the decision-making principles.
Other observations
174.We make three observations about other aspect of AC’s submissions.
175.First, his reasoning about why the PTG should not be guardian and manager seems to proceed on the basis that a guardian and manager should provide a high level of care and support to the protected person. That misunderstands the role of the guardian and manager. A person is appointed to make decisions on behalf of the protected person in relation to the matters specified in the order. In that capacity, a guardian and manager is not required or expected to provide care or support, although in a personal capacity they often do. Nonetheless, as AC observes, the PTG is not in the same position as he is in relation to understanding AB’s personal history, needs and wishes. That concern is addressed by the current order requiring the PTG “to liaise with the protected person’s family regarding the protected person’s treatment, care and support.”
176.Second, there was much discussion about whether AB might qualify for NDIS assistance. The PTG’s officer advised that, when the PTG was appointed initially, she said to AC that she would discuss an NDIS application with him. At that time, AC raised a concern that he did not think it was appropriate to apply. In his view, NDIS supports were not required because it was likely that AB would get better. Once he was better, AB would not require such support and he would be able to return to his independent living. However, the PTG’s officer had spoken to the social worker and advised her to complete the forms. Those forms had not been completed by the date of the review hearing.[47] The PTG’s officer would discuss any application with AC before it is submitted to the National Disability Insurance Agency (NDIA).[48]
[47] Transcript of proceedings page 50
[48] Transcript of proceedings page 51
177.AC submitted:
(a)that a precondition of entitlement is that a person has a permanent disability and to date no such diagnosis has been made in respect of AB; and
(b)he would support an application for NDIS services for AB.
178.In relation to the prognosis for AB we note that:
(a)the Tribunal Review Report of two treating doctors dated 12 April 2017 described AB as having “long-standing treatment-resistant schizophrenia;”
(b)at the review hearing, a current treating doctor stated that he does not know if AB is permanently impaired. AB’s illness fluctuates, but he has a relapsing and remitting illness that seems to be following a chronic course, so it is “likely” that AB will have some impairment for the rest of his adult life. That said, the doctor added that he did not know what treatments might emerge in the future and how AB’s illness might respond to medication and his environment.[49]
[49] Transcript of proceedings page 54
179.Although the medical opinions clearly indicate a long-lasting and serious mental illness, there is some evidence to suggest that AC does not accept that AB has such a condition. Indeed, one reason that AC seemed to be reluctant was that he understood that permanent impairment is a requirement to qualify for NDIS support, and he did not consider that AB is permanently impaired.[50] In his answers on 24 May 2017 to a series of questions from a member of the treating team about AB’s hobbies and other interests, social contacts, food, preferred music and other matters, AC wrote three times that AB “is currently going through a temporary and not permanent setback” (emphasis in original).
[50] Transcript of proceedings pages 51-53
180.Despite the family’s apparent hope that AB will improve significantly, his medical history to date (only some of which is quoted in these reasons for decision) demonstrates that AB has a long-standing condition that, in some form, is likely to affect him for the rest of his life. A current treating doctor has left open the possibility that some treatment to cure his illness might be found in the future. But experience since at least May 2016 shows that such treatment does not yet exist. A guardian must make decisions on the basis that AB will continue to need treatment, care or support in the immediate and foreseeable future.
181.In the absence of evidence from the NDIA in relation to the operation of the NDIS scheme, the review Tribunal is not able to say whether AB would qualify for NDIS support and, if so, what services could be provided if an application were made on his behalf. However, we note that:
(a)the NDIS website[51] states that a person with “an impairment that is likely to be permanent and the impairment makes it difficult to take part in everyday activities, can access the Scheme. A person needs to meet disability or early intervention requirements, as well as age and residence requirements;”
(b)the PTG’s officer advised the review Tribunal that a large proportion of people for whom she has guardianship responsibilities and for whom NDIS support has been sought with supporting medical reports, have episodic mental health conditions, and no applications have been rejected on the basis that the person’s condition is not permanent. But she stressed that the NDIA would decide whether AB is eligible;[52]
(c)based on his experience with other people, a current treating doctor hoped and anticipated that AB would be given an NDIS package by reference to the course of his illness up to the point when the application is made;[53]
(d)the application process takes some months, specific types of documentation must be provided to support an application, there would need to be a planning meeting with the NDIA’s representative, the assessment and decision in relation to that application would be made by someone independent of the treating team and AB’s family, and any NDIS program(s) would be reviewed annually.
[51] see also Transcript of proceedings page 53
[53] Transcript of proceedings page 54
182.We also note that the provision (or not) of NDIS services is just one factor in developing and adjusting the program for the future treatment and possible rehabilitation of AB. In the years before the NDIS, other options would have been considered for someone in AB’s circumstances. The potential for NDIS services to be provided is an additional option for the treating team (and AB’s family) to explore, so that a comprehensive future treatment program can be devised.
183.As a current treating doctor stated at the review hearing, the treating team needs to manage AB in the least restrictive environment, and they hope to discharge AB sooner rather than later. AB has spent two or three nights at his parents’ home on three weekends, and has been to shopping with his father. Psychologists have advised on a behaviour plan involving people outside AB’s family. AB still has his flat. It will take some time before he can stay there. In the meantime, he could possibly live with his family. In the doctor’s opinion, the current plan is effective and should be continued, at least until AB is re-connected with community support systems and can begin to live outside the hospital and communicate with a range of people outside the family (including the guardian) who might contribute to his care.[54]
[54] Transcript of proceedings page 7
184.The doctor also noted that the treatment needs to involve the least restrictive option.[55] In other words under the Mental Health Act, the treating team has a duty to try to manage AB safely in the least restrictive environment. NDIS support might be one of the tools to give him an opportunity to have the least restrictive environment (for example, living in his own flat).[56]
[55] See Mental Health Act 2015 ss 56, 58, 60, 64, 65
[56] Transcript of proceedings page 56
185.We are satisfied that a timely application for NDIS support should be made on behalf of AB.
186.In relation to the apparent change in the family’s attitude to the NDIS, we note that, at the review hearing, AC said that he had no objection to AB’s guardian having power to apply for NDIS support. Indeed he said “if you ask me if I support [that power], 100 per cent.”[57]As a guardian, he would want that power.[58] He said “I’m not against NDIS. As I said, 100 per cent for it.”[59] AC would support an application for NDIS support,[60] and he would be the first to sign for it in front of the President of the Tribunal.[61]
[57] Transcript of proceedings page 23, 25
[58] Transcript of proceedings page 25
[59] Transcript of proceedings page 53
[60] Transcript of proceedings page 55
[61] Transcript of proceedings page 53
187.Third, there can be no doubt that there is longstanding and debilitating conflict between AC (and other members of AB’s family) and current members of the treating team. It appears, in part at least, that the conflict precipitated AC’s applications to be appointed guardian and manager. As quoted earlier, his applications stated that, in the absence of status as guardians, “our involvement is seen by some treating psychiatrists as illegal, unwelcome and a breach of privacy.”
188.Despite their assertions to the contrary, it is clear from the documents provided to the review Tribunal by AC that the family’s involvement to date with the treating team extended well beyond:
(a)observing AB’s reaction to changes to his medication;
(b)reporting their observations to the treating team; and
(c)informing the treating team of AB’s history of medication and which medications did or did not work for him.
189.The correspondence from AC referred to above leads inevitably to the conclusion that his expressed desire or aspiration to work with health professionals will only be satisfied if the treating team is guided by, and largely complies with, his advice or instructions. The history of their interactions to date shows that, to some extent, the treating team has not provided all of the treatment that they considered appropriate because of the interventions of AC and other members of his family. As a consequence, AB has not received treatment to the full extent that he would have but for the involvement of his family. The result might be, as the Sydney doctors suggest, that his under treatment has impeded and hence delayed his recovery.
190.In summary, we find that AC has a difficult and at times dysfunctional relationship with members of the treating team. Some of his actions in relation to the treating team (although presumably well motivated) appear to conflict with, and are likely to conflict with, and hence operate to the detriment of, AB’s interests. We are not satisfied that, if he were appointed as AB’s guardian, AC would follow fully the decision-making principles set out in the GMP Act so far as they involve consultation with the treatment team as AB’s carer. Accordingly, we have concluded that, although he satisfies most of the statutory conditions for appointment as guardian and manager for AB, AC is not at this time “otherwise suitable” for that appointment.
Conclusion and orders
191.For the reasons set out above, the review Tribunal has concluded that:
(a)AB is a person for whom a guardian and manager should be appointed;
(b)the powers granted to the guardian and manager in the current order are appropriate;
(c)the PTG should remain as the guardian and manager.
192.Consequently, the current order should not be varied or revoked.
193.It is important to note what the conclusion in this case is, and what it is not.
194.The conclusion has been reached, and must be understood, in the context of the current and preceding circumstances, primarily the nature of the treatment being received by AB. That treatment is being administered under a PTO. The Chief Psychiatrist is responsible for the treatment, care or support of AB.[62] The Mental Health Act gives the Chief Psychiatrist (and hence the treating team) broad but not unlimited powers. The team needs to have sufficient latitude to develop, revise and administer a program that is tailored to meet AB’s needs and that is in his best interests. That program can be informed, monitored and commented on by AB’s family, but the treating team should not be impeded in delivering treatment, care and support in accordance with their professional opinions, having regard to AB’s history and changing condition.
[62] Mental Health Act 2015 section 62(1)
195.The conclusion in this case does not, and need not, preclude the appointment of a member of AB’s family as guardian and/or manager in the future if AB’s condition improves significantly, his circumstances change, and the role of the treating team is reduced accordingly in both legal and practical terms. We do not speculate about whether or when that might occur, or whether a member or members of AB’s family would necessarily be appointed. Indeed, it might be that eventually there is no need for AB to have a guardian and/or manager. All we are saying is that the fact that AC has not satisfied this review Tribunal that he be appointed as AB’s guardian and manager does not preclude him from applying successfully in the future in significantly different circumstances.
196.The conclusion in this case has been reached at a particular time in specific circumstances. It is appropriate to note that AB’s family are loyal, loving and supportive of him. Those qualities have been demonstrated for a long time, and continue to be demonstrated on a daily basis. The conclusion in this case does not detract from that.
197.Nor does the outcome in this case mean that members of AB’s family are precluded from providing care and support for him in various ways (e.g. by visiting him and providing food) or that their views are irrelevant to important decisions made on his behalf. As noted earlier, the current orders provide that:
(a)the PTG as guardian is to “liaise with the protected person’s family regarding the protected person’s treatment, care and support;” and
(b)the PTG as manager has powers in relation to AB’s property which the PTG is to exercise having regard to the views of his family.
198.AC submitted that:
(a)he (or AB’s family) be appointed as guardian and manager for a trial period of six months to a year “to prove that we are true partner to the current and future treating team in pursuit of improving [AB’s] quality of life;” and
(b)if there are no challenges to the appointment, the trial period could be extended on a yearly basis.
199.For the reasons set out above, we have decided not to take that approach. That does not preclude the family applying for a review of the orders in the future if circumstances change significantly or for seeking a different order when the Tribunal reviews the current orders on its own initiative.
200.We note that, after these reasons for decision were written, but before they were released, AC sent the Tribunal an email advising that AB has been discharged from the AMHU and is now under his parents’ care. As stated earlier, these reasons were prepared on the basis of evidence available to the review Tribunal at the hearing. The change of circumstances advised by AC is consistent with the treatment plan noted earlier, but does not affect the decision in this case.
201.One further matter remains to be decided. On 17 July 2017, the appeal Tribunal made the following order:
1. The hearing of the appeal in AA 14/2017 is adjourned to a date to be fixed and is subject to any further order of the Tribunal.
202.Because this review hearing dealt with the substantive issues raised by the appeal, there is no need for any further hearing in relation to the appeal. Accordingly, in accordance with order 1 on 17 July 2017, we make a further order that the appeal in AA 14/2017 is dismissed.
……………………………..
President G Neate AM
Delivered for and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER:
GT 2/2017
PARTIES, APPLICANT:
AC
PARTIES, RESPONDENT:
Public Trustee and Guardian
TRIBUNAL MEMBERS:
President G Neate AM
Member J Greagg
DATES OF HEARING:
7 August 2017
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