JN and TD
[2016] WASAT 9
•11 FEBRUARY 2016
JN and TD [2016] WASAT 9
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 9 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:3291/2015 | 24 NOVEMBER 2015 | |
| Coram: | MR J MANSVELD (SENIOR MEMBER) | 11/02/16 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Guardianship order confirmed | ||
| B | |||
| PDF Version |
| Parties: | JN TD |
Catchwords: | Guardianship and administration Guardianship Autism Mental illness Electroconvulsive therapy Best interests Suitability to act as guardian Public Advocate as guardian of last resort |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 43, s 44, s 84, s 87, s 97(1) Mental Health Act 1996 (WA), s 104, s 107 Mental Health Act 2014 (WA), s 197, s 198 |
Case References: | Public Trustee v Blackwood (1998) 8 Tas R 256 |
Summary | TD is a 28-year-old man with a primary diagnosis of autism overlayed with a significant mental illness.,For the first 15 years of his life TD lived with his mother. This became untenable due to TD's behavioural problems and with funding from the Disability Services Commission, TD obtained accommodation with the Autism Association.,In 2007 TD's mother was appointed his plenary guardian despite his father's stated lack of faith in his mother's decision-making.,TD's mother was reappointed his plenary guardian in 2012 upon review of the guardianship order.,In 2015 TD's father applied for review of the guardianship order on the basis that TD had experienced a severe relapse of his behavioural difficulties.,TD's father alleged that the treating psychiatrist, the Autism Association and TD's mother were at fault for the deterioration in his behaviour because of poor treatment decisions and poor clinical management.,TD's behaviour had deteriorated to the extent that he was given electroconvulsive therapy under the relevant mental health legislation.,TD's father proposed that the Public Advocate replace TD's mother as his guardian.,The Tribunal found that despite the distressing circumstances caused by TD's behaviour and its implications for his life in the community, that TD's mother was a thoughtful and considered decisionmaker who would continue to act in TD's best interests in a very difficult environment.,The Tribunal found that TD's mother continued to be suitable as his guardian and therefore there was no need to appoint the Public Advocate as the guardian of last resort. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : JN and TD [2016] WASAT 9 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : 24 NOVEMBER 2015 DELIVERED : 11 FEBRUARY 2016 FILE NO/S : GAA 3291 of 2015 BETWEEN : JN
- Applicant
AND
TD
Represented Person
Catchwords:
Guardianship and administration Guardianship Autism Mental illness Electroconvulsive therapy Best interests Suitability to act as guardian Public Advocate as guardian of last resort
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 43, s 44, s 84, s 87, s 97(1)
Mental Health Act 1996 (WA), s 104, s 107
Mental Health Act 2014 (WA), s 197, s 198
Result:
Guardianship order confirmed
Summary of Tribunal's decision:
TD is a 28-year-old man with a primary diagnosis of autism overlayed with a significant mental illness.
For the first 15 years of his life TD lived with his mother. This became untenable due to TD's behavioural problems and with funding from the Disability Services Commission, TD obtained accommodation with the Autism Association.
In 2007 TD's mother was appointed his plenary guardian despite his father's stated lack of faith in his mother's decision-making.
TD's mother was reappointed his plenary guardian in 2012 upon review of the guardianship order.
In 2015 TD's father applied for review of the guardianship order on the basis that TD had experienced a severe relapse of his behavioural difficulties.
TD's father alleged that the treating psychiatrist, the Autism Association and TD's mother were at fault for the deterioration in his behaviour because of poor treatment decisions and poor clinical management.
TD's behaviour had deteriorated to the extent that he was given electroconvulsive therapy under the relevant mental health legislation.
TD's father proposed that the Public Advocate replace TD's mother as his guardian.
The Tribunal found that despite the distressing circumstances caused by TD's behaviour and its implications for his life in the community, that TD's mother was a thoughtful and considered decisionmaker who would continue to act in TD's best interests in a very difficult environment.
The Tribunal found that TD's mother continued to be suitable as his guardian and therefore there was no need to appoint the Public Advocate as the guardian of last resort.
Category: B
Representation:
Counsel:
Applicant : N/A
Represented Person : N/A
Solicitors:
Applicant : N/A
Represented Person : N/A
Case(s) referred to in decision(s):
Public Trustee v Blackwood (1998) 8 Tas R 256
Introduction
1 TD is a 28yearold man with a primary diagnosis of autism overlayed with a significant mental illness.
2 The main people in his life are his mother (LD), his father (JN), the carers at his accommodation placement with the Autism Association (represented by JT, Executive Manager) and his current treating psychiatrist, Dr B.
3 TD lived with his mother, LD, from birth until the age of 15 years. Funding was then obtained from the Disability Services Commission which enabled TD to be accommodated in a group home with the Autism Association (group home). In the preceding several years TD had become more and more violent culminating in a manic episode where he attacked LD and had to be admitted to a locked psychiatric ward. TD was subsequently diagnosed with bipolar disorder (2007 guardianship application by LD).
4 On 25 May 2007, LD was appointed the plenary guardian of TD pursuant to the provisions of the Guardianship and Administration Act 1990 (WA) (GA Act).
5 On 25 May 2012, on review of the guardianship order under s 84 of the GA Act, LD was reappointed the plenary guardian of TD (guardianship order). As with the order made on 25 May 2007, the guardianship order was set for review in five years, the maximum period available under the GA Act.
6 On 14 November 2012, LD was appointed the limited administrator of the estate of TD.
7 On 28 July 2015, JN applied for review of the guardianship order (application). Leave was granted under s 87 of the GA Act on 30 July 2015.
8 On 30 July 2015, the application was referred to the Public Advocate for investigation and report pursuant to s 97(1) of the GA Act.
9 On 8 September 2015, JN was ordered to advise the Tribunal of any expert evidence upon which he intended to rely in respect of TD's psychiatric treatment, in particular the proposed electroconvulsive therapy (ECT).
10 The final hearing of the application took place on 24 November 2015. The hearing was attended by JN, his advocate CM, LD, GD (uncle of TD), JT and FF from the Autism Association, Dr B, psychiatrist and DD from the Office of the Public Advocate (Public Advocate).
Decision of the Tribunal
11 At the hearing on 24 November 2015, I decided to confirm the guardianship order. The following are the reasons for my decision.
The issue before the Tribunal
12 It is common ground that TD remains a person for whom a guardianship order can and should be made. TD is incapable of looking after his own health and safety; unable to make reasonable judgments in respect of matters relating to his person and is in need of oversight, care or control in the interests of his own health and safety or for the protection of others (s 43(1)(b) of the GA Act).
13 The issue before the Tribunal is who should be appointed TD's guardian and what functions should the guardian be given.
14 The primary concern of the Tribunal shall be the best interests of TD (s 4(2) of the GA Act).
15 A plenary guardian shall not be appointed if the appointment of a limited guardian would be sufficient, in the opinion of the Tribunal, to meet the needs of TD (s 4(5) of the GA Act).
16 In considering any matter relating to TD, the Tribunal shall, as far as possible, seek to ascertain the views and wishes of TD as expressed, in whatever manner, at the time, or as gathered from TD's previous actions (s 4(7) of the GA Act).
17 As to who may be appointed guardian, s 44 of the GA Act states:
Who may be appointed guardian
(1) A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal
(a) will act in the best interests of the person in respect of whom the application is made;
(b) is not in a position where his interests conflict or may conflict with the interests of that person; and
(c) is otherwise suitable to act as the guardian of that person.
(2) For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible
(a) the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b) the compatibility of the proposed appointee with that person and with the administrator (if any) of that person’s estate;
(c) the wishes of the person in respect of whom the application is made; and
(d) whether the proposed appointee will be able to perform the functions vested in him.
(3) Where a proposed appointee is a relative of the person in respect of whom the application is made, he shall not by virtue only of that fact be taken to be in a position where his interests conflict or may conflict with those of that person.
(4) The fact that a person is the administrator of the estate of a person does not disqualify him from being appointed as guardian of that person.
(5) Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.
The circumstances of TD according to Dr B, psychiatrist and JT of the Autism Association
18 To put the evidence and submissions of JN and LD into context I propose firstly to summarise the relevant evidence of Dr B represented by his report to the Mental Health Review Board dated 17 August 2015 which is before the Tribunal, and his oral evidence at the hearing on 24 November 2015.
19 For the same reason I will also summarise the relevant oral evidence of JT from the Autism Association.
20 In his report to the Mental Health Review Board (now Mental Health Tribunal), Dr B states that TD has multiple mental health issues; autism, a mood disorder and catatonia. His recent management has been complicated due to severe challenging behaviours with frequent episodes of physical aggression and self-harm. TD required hospital admissions from 20 January 2015 to 13 February 2015 and from 19 February 2015 to 27 May 2015 which were extremely traumatising and after which he showed little improvement.
21 Dr B states that after the discharge in May 2015, TD had been unable to return to the group home and was currently living in another Autism Association residence by himself with 24 hour one to one care (transitional accommodation).
22 Dr B states that TD was placed under a community treatment order (Mental Health Act 1996 (WA) (MH Act repealed), now Mental Health Act 2014 (WA) (MH Act) to facilitate outpatient ECT. He states:
The rationale for ECT treatment is that he has a mood component to his disorder, he has catatonic features which is often amenable to ECT and his self harming behaviour and aggressive behaviour can be helped with ECT. A second opinion was sought from Professor [S] who agreed that ECT is the best form of treatment at this stage. His case was also discussed by the Autism peer group, a group of psychiatrists who have an interest in Autism who agree with this treatment. He is on large amounts of medication which are causing him side-effects and have not managed him effectively. I therefore believe that ECT is a safer form of treatment in the long term than his polypharmacy.
23 At the date of the report ECT had not yet occurred.
24 Dr B states the treatment options were discussed with LD and JN and that written information was provided on ECT and catatonia.
25 Dr B states that the aim of treatment was to have TD return to his premorbid state which included living in the group home, doing yoga, swimming and sailing.
26 In his oral evidence Dr B states that (subsequent to his report to the Mental Health Review Board), TD deteriorated and that ECT was commenced. Dr B says that he sought second and third opinions from fellow psychiatrists. The person in charge of ECT at the hospital, at which the treatment was given, liaised with a psychiatrist in the USA who has more experience in ECT and its use in people with autism.
27 TD is said by Dr B to have initially responded extremely well to the ECT but that the improvement did not last as long as was hoped, although his medications were able to be significantly reduced. TD was now on a 'sensible medication regime' (T:8; 24.11.15).
So the problems we're facing at the moment are, obviously, he is not in an ideal accommodation. The accommodation [transitional accommodation] is set up specifically for him and it's a fine balance between him being overstimulated and being under stimulated. Obviously being under stimulation [sic] causes boredom and can cause problems.
Overstimulation can also make him become more agitated and have more incidents. We've been slowly trying to introduce him to be doing more things in the community. The things he enjoyed before were physio, swimming and sailing and he went on a swimming trip, unfortunately, the pool was busier than it normally is and that caused problems and so had to be terminated. He has had a trip to the physio, which apparently went extremely well and so he's getting back into the activities which he did previously.
So I'm confident that things are going in the right direction. It has been a slow process. It has been nobody's fault. [TD] has had opinions from the people who have the most expert in autism in the State, including Professor [S], who is probably a world authority on autism. [LD] has accepted our suggestions on his treatment and it has been difficult, but we will keep striving to do the best for [TD] and I believe that's what we're doing. (T:89; 24.11.15)
28 As regards TD's contact with others, Dr B states that flexibility is the key. For example, he recently conducted a home visit to TD with TD's psychologist, however because it occurred at a time when there was a changeover of carers which TD finds very stressful, the home visit was cancelled. Dr B states that in his professional opinion, the current restricted contact arrangements (two hours for each of JN and LD on weekends) are 'absolutely very reasonable, and it needs to be flexible within that' (T:32; 24.11.15).
29 In her evidence, JT (Autism Association) states that she has known TD from when he was a schoolboy and at that time when he was experiencing extreme highs and lows in respect to his behaviour. JT says that she has liaised closely with LD.
30 JT states that the deterioration in TD's mental state and behaviour in the last 18 months has been distressing for everyone and resulted in a longer than expected hospital admission. The Autism Association has worked with the Disability Services Commission to obtain additional funding so that TD could be discharged from hospital to the transitional accommodation.
31 JT says that the Autism Association has 'a huge commitment to [TD] and his family' and that the overall aim is to have him return to the group home with his friends 'however, we're certainly not there yet' (T:10; 24.11.15).
The case presented by JN (TD's father)
32 In addition to the application, JN and his advocate, CM, made a number of written submissions to the Tribunal. JN also gave oral evidence at the hearing.
33 The submissions can be summarised as follows:
The application, 28 July 2015
34 JN challenges the current psychiatric treatment for TD. He refers to the treating psychiatrist's 'incompetence' on the basis of an errant diagnosis of TD and changes to pharmacological therapies which resulted he says in disastrous consequences of the adverse effects of medications. He alleges that LD as guardian has failed to consult with him on these very significant matters. JN alleges that the current treatment constitutes pharmacological abuse and expresses a view that ECT must not be allowed.
Submission 24 August 2015
35 JN states his view that Dr B should be removed as the TD's primary psychiatrist due to 'a reportable serious lapse in his duty of care'. He states that he has been prevented from fulfilling his role as the father and primary carer of TD. He seeks an interim order to hold any progression of the attempt to conduct ECT because there is no guarantee TD would benefit from such therapy. JN alleges that Dr B said that 'we won't need your approval under the new Mental Health Act [Mental Health Act 2014]'. He states that the Autism Association has also failed TD and that the use of agency staff is disconcerting. JN states he is progressing formal complaints against Dr B and the Autism Association.
Submission, 16 September 2015 (copy of the complaint by JN to the Health and Disability Services Complaints Office (HaDSCO))
36 JN states that he and LD have parented TD largely independently of each other. He alleges that LD has a 28 year history of very poor decisionmaking in respect to TD.
37 JN states that TD has been subject to pharmacological therapy since he was around three years of age with mixed results throughout his life. The medication regime changed in July 2014 and since then his mental health has deteriorated dramatically, more so than ever before. This, in JN's opinion, is as a consequence of 'incompetence and poor clinical management' whilst under the care of Dr B. Prior to July 2014 TD's mental health had been relatively stable for the previous two years. The change in TD's behaviour was extreme. JN states that nothing was done. TD was frequently psychotic and required emergency admission to hospital which resulted in a prolonged admission from January to May 2015. JN states that both Dr B and LD failed to leave in place a contingency plan for when they were not available.
38 JN states that he spent most of his time at the hospital during TD's admission. He observed that LD was an agitating influence on TD.
39 JN states that for many years TD had been treated for epilepsy and bipolar disorder. It now appears that he did not have those conditions.
40 JN is of the view that the behavioural changes of TD are being attributed to his autism rather than incorrect treatment. When TD was transferred to the transitional accommodation he continued to be prescribed a medication which JN says is known to have a devastating effect on TD's behaviour.
41 JN states that LD also expressed concerns about Dr B's advice and at one point she was considering alternatives for the primary psychiatric care of TD.
42 On 31 August 2015 JN says he attended a Mental Health Review Board meeting. The outcome of the review was that TD remained an involuntary patient under a community treatment order. JN alleges that on the advice of two psychiatrists from the Autism Association TD was to undergo ECT.
43 JN asserts that he has been 'a primary carer for [TD] throughout his life…'. He alleges that his access to TD has been reduced to two hours once a week on account of the concerns he has raised regarding treatment.
44 JN alleges that the Autism Association have been employing shortterm agency staff where TD currently lives leading to poor clinical management of TD. He considers his restricted access to TD as harmful to him. JN says that TD responds positively with him and he considers he has always been a calming influence on TD. JN contends that LD is unaware of the subtleties which lead to TD's behavioural issues.
45 JN states that TD's mental health has not improved instead things have only deteriorated. He alleges that JT, from the Autism Association, has prevented carers from providing him with the valuable information about TD's treatment.
Submission 6 October 2015 in response to the directions order of 8 September 2015 (see above)
46 JN states that there has been a continued deterioration in TD's mental health requiring an emergency hospital admission on 27 September 2015.
47 JN states that TD is now receiving ECT in hospital with LD's consent.
48 JN expresses ongoing concern at what he considers the restrictions on his contact with TD.
49 JN states that he is unable to provide expert evidence in response to his concerns about TD's psychiatric treatment because that would require an assessment of TD which LD will not allow. JN states that he has contacted many agencies but can get no further with his concerns because he is not TD's guardian.
Submission by CM, advocate for JN, 28 October 2015
50 CM submits that it is common ground that TD's mental health has deteriorated significantly in recent months. JN maintains that he has been unable to pursue a reasonable investigation of TD's treatment because of the restrictions placed by LD. JN maintains that he has not been appropriately consulted as part of the decisionmaking process of LD.
51 CM states that JN now understands that the ECT is not a decision that a guardian can make (at that time) despite the fact that LD said that she has consented to the treatment. However, the ECT remains a live issue for JN and he wishes to be consulted regarding the type of treatment for the future.
52 As regards the complaint to HaDSCO, advice received from that agency indicates that because a plenary guardian is considered to stand in the shoes of TD then it is only that person who can make a complaint and that JN is otherwise restricted from doing so unless the guardian agrees. The Council of Official Visitors is in a similar position. The Australian Health Practitioners Regulation Agency (AHPRA) is investigating the concerns raised by JN.
53 CM states that the Mental Health Commission has advised her that under the MH Act, from 30 November 2015, the giving of ECT must be determined by the Mental Health Tribunal.
54 CM states that LD relies on third parties to convey her decisions to JN or communicates by email. The concern is that LD does not offer JN any reasoning behind the decisions that she makes and JN continues to assert that he is not provided with sufficient information from LD so that he can meaningfully comment on any decision to be made.
55 CM submits that the Public Advocate should be appointed TD's guardian with the following functions:
• to consent to TD's treatment and health care;
• to liaise with mental health professionals and advocate on behalf of TD regarding his psychiatric treatment at those times he is an involuntary patient;
• to determine what contact TD should have with others;
• to determine whether any party should be allowed to pursue a complaint on behalf of TD in respect of his medical treatment, psychiatric treatment, provision of services and general care in his accommodation setting; and
• to access medical records and personal records pertaining to TD.
56 It is submitted that the orders should be reviewed in 12 months or two years, at which time both JN and LD may be in a position to be jointly appointed.
Submission by CM, 23 November 2015
57 CM filed a copy of the response from the Assistant Director of HaDSCO to JN dated 21 November 2015 advising him of the refusal to hear his complaint against the Autism Association. The response states that HaDSCO is not precluded from hearing JN's complaint because TD has a plenary guardian. However, the presence of an appointed guardian is an important factor, one that 'shifts the scales' towards not authorising JN to be TD's representative for the purposes of the complaint.
58 CM submits that the response from HaDSCO shows that JN's complaint was not rejected because of a lack of merit and also that LD, as TD's guardian, has the authority to consent to the investigation of the complaint.
59 CM also submitted statements/testimonials from two named security staff at the hospital at which TD was a patient in 2015, two named agency staff employed by the Autism Association and an anonymous statement from an agency person who also has worked at the Autism Association caring for TD.
60 CM submits that these statements/testimonials demonstrate a number of things. They suggest that LD's decision to limit the contact both she and JN have with TD may have been based on her experience in interacting with TD and inappropriately applying that rule also to JN. Decisions about JN's contact with TD may also have been largely informed by Autism Association staff who are said to have a prejudiced view of JN.
61 CM submits that the statements/testimonials also support JN's contention that he is a calming influence on TD.
62 CM submits that LD's own evidence (her submission of 10 August 2015; see below) shows that she does not consult with JN in the sense that she does not necessarily incorporate him in the decisionmaking for TD. CM submits that as TD's father, JN has a direct interest in contact and his view should be sought and considered prior to a contact decision being made.
63 CM submits that TD is subject to restrictive practices (for example, the restricted contact with JN and TD's restricted access to the community), and that under the Disability Services Commission's Code of Practice for the Elimination of Restrictive Practices, the Autism Association must review these practices within a specified timeframe.
64 CM refers to a 'serious incident' on 28 October 2015. JN was allegedly advised by a staff member of the Autism Association that TD had been taken on a prearranged visit to a swimming pool on that day which had resulted in TD assaulting a swimming instructor and a member of the public. JN questions the decision to allow the activity to occur given that the carers were 'relatively new' and wonders who was involved in the decisionmaking and whether there has been any feedback from the Disability Services Commission regarding the management of the incident.
Additional oral evidence and submissions of JN
65 In his oral evidence JN states that he has a relatively good relationship with TD and that when TD's behaviour has become elevated, he has been able to redirect his attention and help him calm down.
66 JN states that LD has restricted his contact with TD in the past, for example, he says that he did not see TD for the first nine months of his life.
67 JN states that when Dr B became the treating psychiatrist in 2012 he considered that a wonderful change because prior to that change TD had been prescribed medication for conditions he was subsequently found not to have. JN states that further changes were made to TD's medications in July 2014 by Dr B and LD and alleges this was the cause of the decline in TD's behaviour about which he has made a complaint concerning Dr B.
68 Through his advocate, CM, JN submits that the appointment of LD as guardian should be revoked and the Public Advocate be appointed limited guardian to make decisions for TD with the functions described in the submission of 28 October 2015 (see above) and with the additional function of deciding TD's accommodation.
69 JN submits that he would not rule out a joint guardianship appointment of LD and the Public Advocate if there was an assurance that proper consultation with him would occur.
The case presented by LD (TD's mother and guardian)
70 LD was unrepresented, and in addition to her oral evidence, made two written submissions to the Tribunal.
Submission, 10 August 2015
71 LD agrees that the attitude of medical staff to TD's mental health during his hospital admissions was not helpful. The medical team insisted that TD did not have a treatable mental health condition and was thus the responsibility of the Disability Services Commission.
72 LD states that she completely understands that JN is finding this episode of TD's life extremely distressing.
73 LD submits that she has continued to make decisions for TD over the course of the last 12 months to improve his situation. They include being in daily contact with the doctors during TD's hospital admissions; attending meetings with the medical team, the Disability Services Commission and the Autism Association; contact with the Office of the Chief Psychiatrist and her local Member of Parliament; arranging for a private podiatrist and TD's personal trainer to visit him in hospital; befriending the hospital security guards who were TD's 'greatest champions' in hospital and keeping in contact with TD's swimming teacher, yoga teacher, personal trainer and speech therapist in readiness for TD's return to the community.
74 LD states that TD has not yet returned to the group home and is being cared for on a one-to-one basis in the transitional accommodation under the auspices of the Autism Association because his behaviour has been often violent, aggressive and unpredictable.
75 LD accepts that she does not consult with JN 'in the sense that I don't necessarily incorporate him in my decision making', but she states that she does keep him informed of the decisions she makes and always treats his opinions and concerns with respect. Since TD's discharge from hospital, LD states that JN has ignored her decisions regarding contact. LD states that she too has restricted her own contact with TD to reduce the prospect of severe agitation.
76 LD submits that JN is prejudiced against her and that she wishes to remain as guardian for TD.
Submission, 3 September 2015
77 LD states that she does not see herself as being in conflict with JN. She says that she understands his concerns. LD alleges, however, that she has suffered substantial abuse from JN: 'he used the Family Court mediation process to make fabricated statements about sexual and physical abuse of [TD]'. She further alleges that JN originally denied paternity of TD and that he denigrates her frequently.
78 LD states that Dr B tried to reduce some of the TD's medication and there was some success and some failure. She submits it cannot be definitively known what caused TD's relapse regarding his mental health. She states that hospital admission is a constant and present possibility for TD and that the current restricted access is reasonable and necessary.
79 LD states that until recently she never contemplated ECT for TD. However, the situation had become so dire that she was of the view that the treatment may assist him significantly. At the time TD could not go out in the community because of his unpredictable violence.
80 LD states that she understands the motivation behind JN making the complaints. However, she does not agree with his assessment of the medical and accommodation services provided to the represented person. She states that she disagrees with JN's assertions about the Autism Association.
81 On 20 November 2015 LD submitted copies of text (telephone) messages she submits are evidence of exchanges between her and JN providing him with updated information.
Additional oral evidence and submissions of LD
82 In her oral evidence LD states that she has been involved for many years with TD's Behaviour Support Plan at the Autism Association (see below) which is regularly reviewed and updated.
83 LD states that the care that has been provided to TD by the Autism Association in the recent very difficult circumstances has been exemplary and that is why she does not support JN's complaint to HaDSCO.
84 As regards JN's contact with TD, LD states that in her experience, JN has not been able to read the signs of TD's increasing agitation and that has resulted in problems during his visits. She says that at this time she would not accept that JN could judge whether it was appropriate to lengthen any particular visit.
85 LD states that she has had the experience of TD's lifetime to make judgments about how to interact with him in differing situations although she accepts that her contact with TD can also lead to him becoming agitated which is why she says she also restricts her own contact when that is warranted.
86 In responding to questions by CM regarding the decisions about JN's contact with TD, LD states that a concern was first raised by JN when she was appointed guardian in 2007. She states that she said at the time that TD, being an adult, didn't necessarily always need his parents with him but that furthermore, if a situation developed that required restricted contact then she would make that decision equally for herself as for JN.
87 LD states that she has not restricted TD's contact with JN simply for 'the sake of it' and when TD is able to return to his group home, rather than the current transitional accommodation, she will try and resume 'normal contact' (T:12; 24.11.15).
88 LD submits she is a very good guardian for TD. She has an intimate understanding of TD's medical needs since his birth and knows what intervention has been successful and what has not.
89 LD submits that she has had regular communication with JN and asks for his feedback. She has forwarded matters raised by JN to Dr B and Professor S. LD states that it has been very difficult to discuss matters in a reasonable way with JN and has been very antagonistic towards her on many occasions.
90 LD would not support her being jointly appointed guardian with the Public Advocate.
In August 2015, a clinical psychologist filed a written testimonial for LD with the Tribunal
91 LD was previously under the care of another clinical psychologist at the practice but she had taken over the role of supporting LD. The previous psychologist, who had been supporting LD since 2001, had found that LD always paid meticulous attention to TD's medication regime. She had always proceeded with caution and had discussed with the previous psychologist the pros and cons of any medication or treatment regime prescribed for TD. The previous psychologist had found TD to be level headed and realistic in her approach. She took 12 months in discussions with the previous psychologist before deciding to change psychiatrists. The current psychologist states that he has been impressed by LD's focus on helping TD return to full health. LD is fully aware of TD's difficulties and is sensitive to changes in his mental state, particularly when they require intervention.
Further evidence of JT (Autism Association)
92 In response to the submission of CM regarding TD being subject to restrictive practices (see above), JT states that a Behaviour Support Plan has been developed which directs care workers in how to best support TD in varying circumstances, for example, when he becomes very agitated. Any restrictive practice must go through a vigorous authorisation process with the Elimination of Restricted Practices Panel and is signed off by a psychologist and by herself as Executive Manager before being incorporated into the Behaviour Support Plan which is signed off by the guardian.
93 As regards the contact TD has with JN, JT states that the Autism Association recognises the role played by JN in TD's life and how much JN cares for his son. When TD is well, he benefits greatly from contact with JN. JT states that there has never been a conversation around restricting contact of JN on an ongoing basis.
94 JT supports the reappointment of LD as TD's guardian stating that she has no issues with the decisionmaking that has taken place. She says that it is sad that blame is being sought for what has happened with TD and believes that all involved with TD, including JN, have acted in the best interests of TD.
Further evidence of Dr B
95 In response to a question from the Public Advocate as to whether he had any concerns about the decisionmaking of LD in respect to TD, Dr B states:
Firstly, I would just like to say that [LD] generally attends every meeting that we have, which is unusual for a parent that she attends. She takes notes in all the meetings, asks sensible questions often difficult questions given [TD]'s complexity, and wants to know the rationale for all medical decisions, and so I think she always goes a significant way in making sure that she is making informed decisions on [TD]'s behalf, so I have got absolutely no concerns about her input into [TD]'s care … (T:32; 24.11.15)
96 Dr B states that he has never withheld information from JN and a meeting was held with him where all the issues concerning TD were discussed in great detail.
97 Dr B's final submission supports the reappointment of LD as TD's guardian.
Firstly, I think [TD] has had the best possible care he could have had in Western Australia. The people who know the most about autism have been involved in his care, and that's the Autism Association and the clinicians involved with [the] Autism Association myself and [Professor S]. I don't think that care is available anywhere else.
I think [LD] has been intimately involved in treatment decisions that have been made and she has been appropriate in her questioning about decisions and asked for second opinions when she has thought that was appropriate. So I think [TD]'s deterioration in his mental health unfortunately occurred. There is no clear reason why that did occur, and everything has been done to try and get him back to his previous good health.
He has had independent reviews of his care, and I refer to the Mental Health Review Board decisions ... So I think there's been an independent review and there is another one a process which is about my management of [TD] with [AHPRA]. So from my opinion I think a plenary guardian is needed, and I don't think that [LD] has had any impact on [TD]'s deterioration. I think she has a really acted in his best interests. (T:4344; 24.11.15)
The evidence and submissions of the Public Advocate
98 The Public Advocate submitted two reports to the Tribunal dated 27 October 2015 and 3 November 2015, and the representative, DD, gave oral evidence at the hearing. A summary of the position of the Public Advocate is as follows.
99 The relationship between LD and JN, who have never lived together, has been a difficult one as documented in the 2007 Tribunal proceedings.
100 It was reported in the 2007 Tribunal proceedings that JN wanted the ability to have input into the decisionmaking and lacked faith in LD's decisions and also wanted TD to be less medicated. He continues to hold these views.
101 After the long admission earlier in 2015, TD was again admitted to hospital. ECT was commenced and by 12 October 2015 he had received three treatments.
102 The represented person was discharged on 20 October 2015 and had returned to the transitional accommodation. He was reported to have settled and required maintenance ECT. His medication regime changed. The Autism Association was planning a new structured routine.
103 At the time of writing the 27 October 2015 report, it is reported that the represented person was doing well and that there had been a marked improvement, however, on that day a critical incident occurred.
104 The Public Advocate continues to support a plenary guardianship appointment and also supports the reappointment of LD. Her decisionmaking is considered, and she keeps a diary of all the evidence of her decisionmaking process. She consults before making decisions. She does inform and consider the thoughts and opinions of JN.
105 JN says that he is a calming influence on TD. However, feedback from the Autism Association is that it is LD who usually picks up the early signs of TD's distress.
106 JN is not suitable to be appointed guardian because he is in such opposition to all the current arrangements to try and bring order and stability in TD's life. JN is 'at war' with the Autism Association and Dr B.
107 The appointment of the Public Advocate would not add anything to the decisionmaking needs of TD.
108 LD should be reappointed the plenary guardian for TD. A joint appointment with the Public Advocate is not necessary and would complicate the decisionmaking.
The decision of the Tribunal
109 It is not uncommon in the jurisdiction of the Tribunal under the GA Act that when conflict exists in families, the Public Advocate is appointed guardian for the family member with a disability.
110 The most typical reason is that decision making has become unviable as the conflict itself infects the judgments made by the capable family member(s).
111 However, as a reading of s 44 of the GA Act shows, this cannot and should not be the default position of the Tribunal.
112 In deciding who should be appointed guardian, s 4 and s 44 of the GA Act must be read together.
113 The primary concern of the Tribunal is the best interests of TD (s 4(2) of the GA Act). The expression 'best interests' in the context of a protective jurisdiction such as the GA Act, reinforces the idea that the paramount concern is the overall interest of the person to whom the protection is directed (Public Trustee v Blackwood (1998) 8 Tas R 256).
114 Anyone has a right to propose themselves as a person's guardian and their suitability needs to be tested against the requirements of s 44 considered in the overall context of the best interests of the person.
115 In the case of TD, LD, his mother, submits that she should be reappointed guardian. JN, TD's father, does not propose himself but submits that the Public Advocate should be appointed.
116 The Public Advocate can only be appointed sole guardian if there is not anyone willing or in the opinion of the Tribunal, suitable to be appointed (s 44(5) of the GA Act).
117 The Public Advocate can be appointed jointly with another person (s 44(5) of the GA Act).
118 I have decided to reappoint LD as the plenary guardian of TD for the following reasons.
119 TD is 28 years of age. For the first 15 years of his life he was in the care of LD. That changed when the behaviour of TD became unmanageable, his aggressive behaviour being a concern even then. LD subsequently arranged, with funding from the Disability Services Commission, to have TD accommodated with the Autism Association where he continues to live.
120 In 2007, LD was appointed TD's plenary guardian. As stated by the Public Advocate, in those proceedings JN expressed a lack of faith in the decisionmaking of LD.
121 JN did not seek review of the guardianship order then or when LD was reappointed in 2012 upon statutory review of the order under s 84 of the GA Act.
122 JN now claims that LD has a history of poor decisionmaking in respect to TD. In fact, he claims poor decisions have been made by LD for all of TD's life.
123 In my view, JN's claims are not supported by the evidence and his case is not assisted by the general submission that LD has never been an appropriate decisionmaker for TD.
124 The evidence demonstrates, and I accept, that LD has an intimate knowledge of TD's needs and his idiosyncrasies. This is critically important in the complex and difficult circumstances that TD has presented and continues to present as a consequence of his disability. The Tribunal should not lightly interfere in this situation by appointing a guardian, in this case, the Public Advocate, who lacks the knowledge and understanding of the needs of TD which LD has developed over all the years of TD's life.
125 It is common ground that the last 18 months or so of TD's life have been exceedingly difficult. It is hard to overestimate the distress felt by LD and JN in these circumstances. It is also understandable that there will be a tendency to apportion blame.
126 JN places the blame squarely at the feet of Dr B in his treatment of TD, at the Autism Association for an alleged lack of support and expertise in TD's care, and LD for her decision not accepting his claims as worthy of the radical action he has proposed, namely the investigation of all those involved.
127 JN was given the opportunity to produce expert evidence which might give substance to his claim that Dr B, has been, in his view, and to use his words, incompetent in the treatment of TD. He was not able to do so claiming that he was stymied by the actions of LD as guardian. I understand JN's complaint against Dr B is currently before AHPRA.
128 I accept the evidence of Dr B as to the diagnosis of TD's mental illness which together with his autism has produced severe challenging behaviours, including physical aggression and self-harm.
129 Dr B as a psychiatrist is a specialist medical practitioner in dealing with TD's conditions. I accept that he has consulted widely with other experts in the management and treatment of TD, particularly in that most serious of decisions, the use of ECT.
130 There is no evidence before me to suggest that Dr B and LD have not given the utmost thought and consideration in the very difficult treatment decisions that have needed to be made for TD.
131 It is important to understand the consent regime that is required for ECT to be given and the at times limited role of a guardian appointed under the GA Act in that process.
132 TD has been and remains an involuntary patient under the MH Act repealed (1996 Act) and the current MH Act (2014 Act).
133 Under the 1996 Act, except for emergency psychiatric treatment, ECT could not be performed on an involuntary patient unless it had been recommended by the treating psychiatrist and approved by another psychiatrist. A guardian had no authority in that decision (s 104 of the 1996 Act).
134 Even had TD been an voluntary patient, it is more than likely under the 1996 Act that LD, as guardian, would not have had the authority to consent to ECT (s 107 of the 1996 Act) (Full Board of the Guardianship and Administration Board in Re: JB 17 September 2002, at pages 5 and 6).
135 Under the 2014 Act, whilst a guardian can now consent to ECT for a voluntary patient (see s 197), ECT for an involuntary patient (the position of TD), must be approved by the Mental Health Tribunal (s 198 of the 2014 Act).
136 In the situation of an involuntary patient and ECT, the role of a guardian is largely restricted to that of an advocate, which, in my view, LD has performed admirably given her knowledge and understanding of his unique traits.
137 A major concern of JN is that LD does not allow sufficient contact between he and TD, and that he is better equipped to deal with TD's problematic behaviour. I accept that the question of contact places LD in a difficult position at times given the fractured relationship between her and JN. However, the evidence is that prior to the deterioration in TD's mental state JN was largely given the contact he sought. It has been in the context of TD's deteriorating behaviour that LD has restricted contact.
138 I am unable to give much weight to the statements of the hospital security staff and agency staff which were filed by JN given that the evidence could not be tested under crossexamination. At their highest they are an acknowledgment of JN's love and concern for TD which I accept and which is not disputed in any way by LD.
139 I accept the evidence of LD in this regard. Her evidence was thoughtful and considered and she has not restricted contact of JN with TD any more than she has restricted herself. In the current circumstances this requires decisionmaking in a fluid and changeable situation given the evidence of Dr B, which I accept, that it is currently difficult to balance either under or over stimulation of TD both of which produce negative behaviours.
140 Another major concern of JN is that LD does not consult with him in the decisions that need to be made for TD which, as TD's father, he submits he has a right to be involved. As with the decisionmaking concerning contact with TD, this at times places LD in a difficult position. I am satisfied on the evidence that LD does give thought to what JN puts to her from time to time even if there is not a defined process in place in which prior to a decision being made, she has a discussion with JN about it. It is clearly the case that their relationship does not support such an explicit process and this is made the more difficult by what I find to be the rather strident way in which JN presents his views. The degree to which any guardian 'consults' with others no doubt varies greatly between guardians and the type of decision that needs to be made. I am satisfied on balance that LD consults appropriately when making her decisions for TD, and this is supported by the evidence of Dr B and JT of the Autism Association.
141 When I consider the provisions of s 44 of the GA Act individually I conclude on the evidence as follows.
142 For the reasons set out above, I have no doubt that LD has acted and continues to act in TD's best interests and that her interests do not conflict with those of TD (s 44(1)(a) and (b) of the GA Act).
143 I find that LD remains suitable to act as guardian of TD in that she has been his primary decisionmaker since his birth in her roles as his mother and guardian. The GA Act promotes the desirability of preserving existing relationships within TD's family when deciding who should be appointed guardian (s 44(2)(a) of the GA Act).
144 LD is clearly compatible with TD as his mother and she is also his appointed administrator (s 44(2)(b) of the GA Act).
145 The Tribunal does not have the benefit of knowing the explicit wishes of TD because he is not in a position to say what they are given his disabilities. However, I am satisfied that he would want his mother involved rather than have an outside and, to him, unknown person (the Public Advocate) make decisions for him (s 44(2)(c) of the GA Act).
146 Despite the claims of JN, I am satisfied for the reasons already given that LD is able to perform the functions of a plenary guardian. Her role as guardian is a continuation of her role as parent and primary decisionmaker when TD was a child.
147 The evidence of LD is credible and impressive. She is clearly a person who thinks deeply about the decisions that need to be made for TD. She is mindful of the importance of JN in TD's life and is prepared to make difficult decisions which also impact on her contact with TD. LD is supported by TD's treating team and his accommodation provider. I note JT's evidence that the Autism Association (with the assistance of the Disability Services Commission) has invested significant resources into securing the wellbeing of TD in very difficult circumstances and I am satisfied that is due in no small part to the way in which LD has engaged with the Autism Association over a long period of time.
148 I am persuaded by the submission of the Public Advocate that her appointment as TD's guardian will detract from the knowledge base and skill set already available to TD in the appointment of LD.
149 I acknowledge the frustration and anger JN feels in what he alleges has been the poor treatment of his son. As I have already said, I do not accept that the evidence before me support his contentions.
150 The appointment of a guardian is not a magic bullet. An appointment is often made in circumstances of conflict and fractured relationships. However, when I consider the overall interests of TD, I am satisfied that can best be achieved with a continuation of LD as his guardian. I am further satisfied that plenary authority continues to be warranted given the vulnerabilities and needs of TD.
151 The guardianship order made on 25 May 2012 is confirmed.
Orders
152 The Tribunal declares that [the represented person]:
(a) is incapable of looking after his own health and safety;
(b) is unable to make reasonable judgments in respect of matters relating to his person;
(c) is in need of oversight, care or control in the interests of his own health and safety or for the protection of others; and
(d) is in need of a guardian,
- and the Tribunal orders that:
The order is confirmed as follows:
1. LD of [address] is appointed plenary guardian of the represented person with all the powers and duties conferred by the [Guardianship and Administration Act 1990 (WA)].
2. This order is to be reviewed by 24 November 2020.
I certify that this and the preceding [152] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER
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