JH
[2008] WASAT 119
•27 MAY 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: JH [2008] WASAT 119
MEMBER: MS J TOOHEY (SENIOR MEMBER)
MS M JORDAN (SENIOR SESSIONAL MEMBER)
MS S GILLETT (SENIOR SESSIONAL MEMBER)
HEARD: 14 MAY 2008
DELIVERED : 27 MAY 2008
FILE NO/S: GAA 693 of 2008
BETWEEN: JH
Represented Person
Catchwords:
Guardianship Community guardian Whether appointment of Public Advocate should be revoked in favour of community guardian Community guardian appointed Provision of medical and other information by Public Advocate to the community guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2)(c), s 4(2)(f), s 51, s 84, s 113, s 119(3), s 119(3)(e), Pt B Sch 1 cl 12
Result:
Community guardian appointed
Category: B
Representation:
Counsel:
Represented Person : Self-represented
Solicitors:
Represented Person : Self-represented
Case(s) referred to in decision(s):
DMS [2008] WASAT 14
PN [2008] WASAT 32
Public Advocate and F [2007] WASAT 183
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
For some years the Public Advocate had been guardian for JH for the purpose of consenting on her behalf to medical treatment. The Public Advocate asked the Tribunal to revoke her appointment and appoint in her place a community guardian.
The Tribunal was satisfied that JH continued to need a guardian to consent on her behalf to treatment. It was satisfied that the proposed community guardian was a suitable person to be appointed.
A recent review of JH's medications had raised the question of whether a particular medication was for the purpose of restraining her; if so, it was arguable that it was not treatment within the meaning of the Guardianship and Administration Act 1990 (WA) and the guardian would need specific authority to consent to its continued administration. JH's treating doctor had indicated that the medication could be considered by some practitioners to be restraint.
The Tribunal revoked the Public Advocate's appointment and appointed the community guardian for 12 months so that her appointment could be reviewed at the end of that time. In addition to giving the community guardian authority to consent to treatment, the Tribunal gave her authority to consent to the use of chemical or physical restraint.
The Public Advocate asked the Tribunal to authorise her to divulge to the community guardian information about JH held by the Public Advocate for the purpose of the Tribunal proceedings. The Public Advocate submitted that making the information available would enable the community guardian to perform her functions effectively. The Tribunal authorised the disclosure.
Background
This is an application by the Public Advocate to have her appointment as limited guardian revoked and a community guardian appointed in her place.
The Public Advocate was first appointed limited guardian for JH in May 2003. The appointment, which was for five years, was for the purpose of consenting on JH's behalf to treatment (as defined in the Guardianship and Administration Act 1990 (WA) (the Act)). In August 2005, the Public Advocate sought the revocation of her appointment on the ground that JH no longer needed a guardian to consent to treatment. The Tribunal determined there was a continuing need and, on 13 October 2005, confirmed the appointment of the Public Advocate for a further five years.
On 31 March 2008, the Public Advocate lodged a further application for review of her appointment, this time seeking its revocation in favour of the appointment of a community guardian.
The Community Guardian Program
The Community Guardian Program was established by the Public Advocate with the aim of establishing relationships between volunteer guardians and persons with disabilities who have no‑one else in their lives, who are in need of a guardian, and for whom, in the absence of anyone else suitable and willing, the Public Advocate would be appointed guardian.
Prospective community guardians are selected and trained by the Public Advocate. The process involves a written application, attendance at an initial information and selection session followed by a two‑day training session, criminal record and referee checks, and signing a confidentiality agreement. Proposed community guardians are then 'matched' to an individual for whom the Public Advocate is currently appointed guardian; they spend time developing a relationship with that person before being proposed for formal appointment as guardian. The Public Advocate provides continuing training and support to a community guardian once appointed.
Does JH need someone to act on her behalf?
JH is a 49yearold woman with an intellectual disability. At some point in the past, she was labelled as suffering from schizophrenia but this has recently been reviewed and her general practitioner has confirmed that she has not been diagnosed with any mental illness; as a result, references to a diagnosis of schizophrenia have been removed from her records.
JH lives in supported accommodation. She works in a facility managed by the supported accommodation and recently celebrated 40 years of service. She has some literacy and numeracy skills and manages many activities of daily living independently. Her communication skills are affected by her hearing loss and a speech impediment but she is able to express her views to those who understand her.
The Public Advocate tells the Tribunal that little is known about JH's background before 1970 when she went to live in her current accommodation. Other than a stepsister who has occasional contact but prefers not to be involved in her life, her family has not had contact with her for over 20 years and apparently have no interest in her.
The Public Advocate reports that JH's accommodation is secure and she receives all the services she needs. Her only apparent need for a guardian relates to her medical and dental treatment. She takes a number of prescription medications and has had various gynaecological and dental procedures over the years. She has glaucoma in one eye and hearing loss, and has regular ophthalmology, audiology and podiatry reviews.
A recent review of JH's medications has raised the question whether a particular medication used to manage agitation is for treatment or whether it is for behaviour management and might therefore be considered outside the bounds of the authority of a guardian appointed to consent to treatment. Prior to this recent review, the Public Advocate had consented to the administration of the medication on the basis that it was treatment related to JH's schizophrenia. There is no question that the medication is appropriate for JH's condition. However, clarification that she does not have schizophrenia has raised the question whether the guardian needs additional authority in relation to the medication.
The Public Advocate has asked JH's current general practitioner whether the medication is used for behaviour modification. He reports that JH's diagnosis is of intellectual disability with behavioural disturbance bordering on psychotic behaviour; the medication is for 'behaviour modification'; although he does not consider it to be 'chemical restraint', that is 'really a question of definition' but, as it reduces outbursts of behaviour, some practitioners would consider this restraint.
The proposed community guardian
The Public Advocate proposes that KS, a volunteer from the Community Guardian Program who has formed a close relationship with JH over the past year, be appointed her guardian for the purpose of consenting to her treatment and health care and to any chemical restraint.
KS was selected by the Public Advocate as a possible match for JH because she lives not far from JH and because KS had indicated she was willing to advocate for a person with an intellectual disability.
The Public Advocate says KS has visited JH fortnightly since they met in March 2007; she has spent time with the staff of the facility and developed a good understanding of JH's needs, and she has met her current general practitioner who has explained to her JH's current medical treatment and relevant information about her.
KS attended the Tribunal hearing with JH and the genuine affection between them was evident. A representative of the facility where JH lives also attended the hearing and confirmed that staff provide consistently positive feedback about KS's involvement.
The Public Advocate says KS understands well the obligation on a guardian to act in the best interests of the person they represent; she has a strong commitment to advocating for the rights of people with a decision‑making disability, and the Public Advocate believes she will be a strong advocate on JH's behalf when required. By way of example, at a recent appointment with JH's general practitioner, it was KS's querying of the diagnosis of schizophrenia that led to clarifying that there had never been a formal diagnosis and the removal of this label from JH's medical records. The Public Advocate tells the Tribunal that KS has actively encouraged JH's involvement in the community and has created opportunities for her to participate in ways that otherwise would not have been available including welcoming JH into her own family and spending Christmas Day with them.
What are JH's views and wishes?
The Tribunal must seek to ascertain, as far as possible, JH's views and wishes as expressed in whatever manner, at the time or as gathered from her previous experiences: s 4(2)(f) of the Act.
Although JH has a speech impediment, it is not so difficult to understand her and she made clear at the hearing how much she likes KS. Staff at the facility report she is always happy to see KS; she speaks happily about her after she has left and knows KS is her 'special person'.
The Tribunal is satisfied that JH would wish for KS to act on her behalf.
Is JH in need of a guardian?
The Tribunal is satisfied that JH is not able, because of her intellectual disability, to look after her own health and safety or to make reasonable judgments about matters relating to her person, and that she is in need of oversight and care in the interests of her own health and safety. It is satisfied that she needs someone with lawful authority to consent on her behalf to treatment.
The question arises whether a formal appointment is necessary in order to meet JH's need or whether there is a less restrictive means by which her need can be met.
A guardianship order shall not be made if the needs of the person concerned could, in the opinion of the Tribunal, be met by other means less restrictive of his or her freedom of decision and action: s 4(2)(c).
Section 119(3) of the Act provides a means by which consent to medical and dental treatment may be given by certain persons without the need for a formal appointment. Consent may be given by the first in order of priority of the following persons:
(a)a guardian of the person needing treatment;
(b)the spouse or de facto partner of the person needing treatment;
(c)a person who, on a regular basis, provides or arranges for domestic services and support to the person needing treatment but does not receive remuneration for doing so;
(d)a person who is the nearest relative (other than the spouse or de facto) of the person needing treatment and who maintains a close personal relationship with the person needing treatment; or
(e)any other person who maintains a close personal relationship with the person needing treatment.
A person is regarded as having a close personal relationship if the relationship is maintained through frequent personal contact and a personal interest in the welfare of the person needing treatment: s 119(3)(e).
In JH's case, there is noone who satisfies (a) to (d) in s 119(3) of the Act. The question arises whether KS meets the criterion in s 119(3)(e), being a person who maintains a close, personal relationship with JH. If so, there may be no need for a formal appointment as guardian.
This question has arisen in previous matters concerning the appointment of a community guardian (see: Public Advocate and F [2007] WASAT 183; DMS [2008] WASAT 14; PN [2008] WASAT 32. It arises firstly because it is in the nature of the Community Guardian Program that close, personal relationships develop between the proposed community guardian and the person whom the application concerns. It arises secondly because the Public Advocate envisages that community guardians are likely to be proposed where the person concerned needs someone to consent on their behalf to treatment and health care.
Why a formal appointment is in JH's best interests
Although a close and personal relationship has developed, and is being maintained, between KS and JH, the Tribunal considers that it is in JH's best interests that KS be formally appointed her guardian for the purpose of consenting to treatment.
Nothing in s 119(3)(e) of the Act requires a relationship to be of any particular duration. However, as is common in cases involving community guardians, the relationship between KS and JH is still relatively new. Although the Tribunal has no reason to doubt KS's suitability to act on JH's behalf, the relationship is still relatively untested.
Section 51 of the Act obliges a guardian to act according to his or her opinion of the best interests of the person concerned. The same section specifies what it means for a guardian to act in that person's best interests. It imposes statutory obligations on a guardian to act in particular ways in relation to the person he or she represents.
The Act also provides that every order appointing a guardian must be reviewed by the Tribunal when it expires: s 84. This provides a means by which an order can be monitored and adjusted, if necessary, to meet the changing needs of the person concerned. It also provides a measure of accountability on the part of the guardian that s 119(3), which operates simply to authorise doctors to administer treatment with the consent of the specified persons, does not.
As the Tribunal put it in DMS (above), at [63], the combination of these requirements offers 'a robust protection not inherently present in decisions made under s 119 [of the Act]'. The added protection is appropriate where the relationship is still developing, including with carers and treating doctors.
A formal appointment, at least for an initial period, provides safeguards which the Tribunal considers will better meet JH's best interests than the less formal means provided by s 119(3).
What authority does the guardian need?
Arguments can be had about whether medication administered for the purpose of modifying behaviour is treatment within the meaning of the Act or whether it is for 'chemical restraint' in such a way that it falls outside the definition of treatment and therefore outside the authority of any guardian appointed solely to consent to medical treatment.
In light of the statements by JH's general practitioner about the particular medication, including that it could be construed as restraint by some practitioners, the Tribunal considers it appropriate to give the guardian specific authority additional to the authority to consent to medical treatment. Whether consent is given to treatment or to chemical restraint will be a matter for the guardian to determine in each case as best she can.
Authority to disclose information
Proceedings under the Act usually involve very personal information about an individual including about their family, their medical treatment and their finances. For this reason, the Act imposes strict confidentiality requirements on persons performing functions under it, and strict limitations on publication of proceedings: s 113; cl 12 of Pt B, Sch 1. The circumstances in which a person is entitled to inspect or have access to documents or other materials held by the Tribunal is limited.
In this case, the Tribunal considers it appropriate to authorise the Public Advocate to provide to KS information held by the Public Advocate for the purpose of these proceedings including the Public Advocate's report to the Tribunal and related information including medical reports. It is in JH's best interests that KS have all relevant information available to inform the decisions she makes on JH's behalf about her treatment and medications. As a person performing a function under the Act, she will in turn be bound by the provisions in the Act concerning confidentiality.
Orders
1.The order be revoked and a guardianship order in the following terms be substituted for it:
KS be appointed limited guardian of the represented person with the following functions:
(a)Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to consent to any treatment or health care of the represented person.
(b)To consent to the use of chemical or physical restraint in respect of the represented person and to decide matters incidental thereto.
2.The Public Advocate is authorised to divulge to the limited guardian information held by the Public Advocate for the purpose of the proceedings and to provide to her a copy of the Public Advocate's report and any other reports, including medical reports, relating to the proceedings and to any subsequent review by the Tribunal.
3.This order is to be reviewed by 14 May 2009.
I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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