KD
[2005] WASAT 248
•14 SEPTEMBER 2005
KD [2005] WASAT 248
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 248 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:548/2005 | 17 JUNE 2005 | |
| Coram: | MS F CHILD (MEMBER) | 14/09/05 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Order confirmed | ||
| B | |||
| PDF Version |
| Parties: | KD |
Catchwords: | Guardianship and administration Need for a guardian Represented person with acquired brain injury due to solvent use No family members involved in care Chronic health problems Need for lawful authority to give consent to medical treatment Consent not required for "urgent treatment" Role of a guardian to advocate for the best interests of the represented person |
Legislation: | Guardianship and Administration Act 1990 (WA), s 3, s 4(2)(c), s 43(1)(b), s 43(1)(c), s 44(5), s 51(2)(a), s 84, s 119 |
Case References: | Re BCB; Application for Guardianship Order, (2002) SR (WA)338 (BCB) Re BTO (Unreported decision of the Full Board delivered 14 October 2004 (Hon Justice ML Barker, Presiding, Dr A McCutcheon, Member and Ms F Child, Member) Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : KD [2005] WASAT 248 MEMBER : MS F CHILD (MEMBER) HEARD : 17 JUNE 2005 DELIVERED : 14 SEPTEMBER 2005 FILE NO/S : GAA 548 of 2005 BETWEEN : KD
- Represented person
Catchwords:
Guardianship and administration - Need for a guardian - Represented person with acquired brain injury due to solvent use - No family members involved in care - Chronic health problems - Need for lawful authority to give consent to medical treatment - Consent not required for "urgent treatment" - Role of a guardian to advocate for the best interests of the represented person
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4(2)(c), s 43(1)(b), s 43(1)(c), s 44(5), s 51(2)(a), s 84, s 119
Result:
Order confirmed
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Category: B
Representation:
Counsel:
Represented person : No appearance
Solicitors:
Represented person : N/A
Case(s) referred to in decision(s):
Re BCB; Application for Guardianship Order, (2002) SR (WA)338 (BCB)
Re BTO (Unreported decision of the Full Board delivered 14 October 2004 (Hon Justice ML Barker, Presiding, Dr A McCutcheon, Member and Ms F Child, Member)
Case(s) also cited:
Nil
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Summary of the Tribunal's decision
1 On periodic review of a guardianship order which appointed the Public Advocate as limited guardian with authority to consent to medical treatment for a 39 year old man with acquired brain injury following substance abuse, the State Administrative Tribunal (the Tribunal) confirmed the order.
2 Although the represented person was well cared for in a nursing home in which he lived, there remained a need for someone with lawful authority to give consent to medical treatment for him as he was unable to give that consent and was receiving medical treatment for a chronic lung condition and for epilepsy.
3 The Tribunal confirmed that "urgent treatment" as defined in the Guardianship and Administration Act 1990 (WA) (the Act) could be given without consent of a guardian but this provision did not operate as a less restrictive alternative to the making of a guardianship order. Not to make an order on would not be consistent with Australian law and not in the best interests of the represented person.
4 Due to the lack of regular family involvement in his care and the chronic nature of his health problems and the nature of his disabilities he remained a highly vulnerable person and in the view of the Tribunal in need of an independent guardian to give consent for his medical treatment and care and to advocate for his best interests in relation to that treatment and care.
Reasons for decision of the Tribunal
5 These reasons relate to the review of a guardianship order dated 17 April 2000, pursuant to s 84 of the Guardianship and Administration Act 1990 (WA) (the Act) by which the Public Advocate was appointed limited guardian for KD (the represented person).
Background
6 A limited guardianship order was first made by the Guardianship and Administration Board (the Board) on 17 April 2000 following an application in respect of the represented person made by a doctor from the local health service for the appointment of a guardian to consent to investigation of abdominal pain by endoscopy. The order appointed the
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- Public Advocate to consent to any treatment or health care of the represented person.
7 The jurisdiction and functions of the Board were absorbed by the Tribunal from 24 January 2005.
8 At the review hearing on 17 June 2005 the Tribunal had before it reports from the represented person's treating doctor, the Clinical Nurse Manager of the nursing home in which he lives and from the Public Advocate.
9 The Public Advocate's delegated guardian (the guardian) attended the review hearing and also made available documents and file notes made by staff of the Office of the Public Advocate relevant to the issue of the medical treatment of the represented person.
10 The represented person has been a resident in the nursing home since 1996 and according to the most recent report of the guardian he is well settled and appears happy there. The Clinical Nurse Manager of the nursing home reports that he has a close friend who is also a resident and enjoys his recreational activities including outings, music and contact with the staff.
11 The reports refer to intermittent contact with members of his family and his community. The Clinical Nurse Manager's report states that the represented person's mother and a close friend of his had died in the year preceding the review. His father and an aunt had visited him at the nursing home earlier in the year following the death of his mother. He had apparently not attended his mother's funeral as the risk to his health of travel to the community was considered by the nursing home staff to be too high.
12 The represented person has a complex medical history which will be referred to later in these reasons.
Review of the order
13 On review of an order the Tribunal must be satisfied that the person at the time of the review remains a person for whom a guardianship order may be made, that is, he meets the criteria of s 43(1)(b) of the Act, that he is:
(i) incapable of looking after his own health and safety;
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- (ii) unable to make reasonable judgments in respect of matters relating to his person; or
(iii) in need of oversight, care or control in the interests of his own health and safety or for the protection of others.
14 The Tribunal must also be satisfied that the represented person remains in need of a guardian (s 43(1)(c)).
15> If the Tribunal is satisfied in respect of the elements of s 43 and there is no other less restrictive means of meeting the needs of the represented person, then in determining the appropriate appointment of a guardian the Tribunal must have regard to s 44(5) of the Act which provides that unless she is appointed to act jointly with another person or persons, the Public Advocate shall not be appointed as a guardian unless there is no other person suitable and willing to act.
16As this case involves the need for consent to medical treatment s 119 of the Act is relevant to the issue of the "need for a guardian". That section provides a regime for consent to be obtained for medical treatment of patients who are themselves incapable of consenting to treatment. The section provides a list of persons from whom consent may be sought. The section also provides that "urgent treatment" as defined may be given without consent.
17 In relation to treatment that is not "urgent treatment" it may be given if there is a person listed in the hierarchy of s 119(3) in the life of the represented person who consents to it. As such the operation of s 119 in this regard may mean that there is no need for the appointment of a guardian as this mechanism can operate as a less restrictive alternative to the making of a guardianship order for the purposes of medical consent.
18 The section provides:
"119 (1) If in the opinion of a practitioner a person presented to him for treatment ¾
(a) is in need of urgent treatment;
(b) is incapable of consenting to the proposed treatment; and
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- (c) is at the time of presentation a person for whom a guardian could be appointed under this Act,
- the practitioner may provide the treatment if the person referred to in subsection (3) consents to it.
(1a) A practitioner may provide treatment under subsection (1) without the consent of the person referred to in subsection (3) if in the opinion of the practitioner it is not practicable to obtain that consent.
(2) If in the opinion of a practitioner a person presented to him for treatment ¾
(a) is in need of treatment that is not urgent treatment;
(b) is incapable of consenting to the proposed treatment; and
(c) is at the time of presentation a person for whom a guardian could be appointed under this Act,
(3) For the purposes of subsections (1) and (2), the person who may consent to treatment is the first in order of priority of the following persons ¾
(a) a guardian of the person needing the treatment;
(b) the spouse or de facto partner of the person needing the treatment;
(c) a person who, on a regular basis, provides or arranges for domestic services and support to the person needing the treatment but does not receive remuneration for doing so;
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- (d) a person who is the nearest relative (other than the spouse or de facto partner) of the person needing the treatment and who maintains a close personal relationship with the person needing the treatment;
(e) any other person who maintains a close personal relationship with the person needing treatment; or
(f) a person prescribed in the regulations.
- (3a) For the purposes of subsection (3) a person is to be regarded as maintaining a close personal relationship with the person needing the treatment if the relationship is maintained through frequent personal contact and a personal interest in the welfare of the person needing the treatment.
(4) In this section ¾
"practitioner" in relation to medical treatment means a medical practitioner within the meaning of the Medical Act 1894, and in relation to dental treatment means a dentist registered under the Dental Act 1939; and
"urgent treatment" means treatment that in the opinion of the practitioner concerned is urgently needed ¾
(a) to save the life of the person needing the treatment;
(b) to prevent serious damage to the health of the person needing the treatment; or
(c) to prevent the person needing the treatment from suffering or continuing to suffer significant pain or distress."
19 No issue is taken that the represented person remains a person for whom a guardianship order can be made.
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20 The report from Dr AK, the treating doctor, dated 16 June 2005 states that "the represented person suffers a cognitive impairment due to solvent use in childhood and adolescence". The report also states that the represented person suffers from "bronchiectasis which may shorten life expectancy" and epilepsy described as "stable". The report describes the cognitive impairment experienced by the represented person as "static".
21 The report states that the represented person is incapable of making reasonable decisions in relation to his personal health care and his living situation. The report goes on to say that the represented person's "cognitive capacity appears to be equivalent to a 10 to 12 year old".
22 The report of the Clinical Nurse Manager of the Nursing Home in which the represented person is resident lists his diagnoses as the following:
"GI reflux; Epilepsy; Bronchiectasis; Toxic brain injury"
23 Her report also refers of the death of the represented person's mother and close friend that year. It refers also to telephone contact and rare visits from relatives due to the distance of the nursing home from the community of the represented person.
24 The Tribunal has on file reports regarding the capacity of the represented person going back to 1998 when the first appointment was made of an administrator for the management of his financial affairs. The medical and capacity information regarding the represented person is substantially the same in all the reports, indicating a brain injury secondary to solvent abuse and an incapacity in relation to decisions regarding his living situation, his personal health care and his financial affairs.
25 Based on the report of Dr AK and the history established by the other reports provided for this review and on the Tribunal's file I am satisfied that the represented person meets each of the criteria in s 43(1)(b) of the Act.
Need for a guardian s 43(1)(c)
26 The second test that must be met before a guardianship order can be made (or confirmed on review) is that the person must be "in need of a guardian" under s 43(1)(c) of the Act. This requirement must also be read with s 4(2)(c) which provides:
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- "A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action."
27 The submission from the Public Advocate is that the guardianship order should be revoked because her consent to medical treatment for the represented person has not been sought during the period of the order and therefore there is no continuing need for a guardian. The argument is also made that the needs of the represented person (in respect of the treatment and care he requires) are currently met and that these will continue to be met without the appointment of a guardian. In the submission of the Public Advocate this represents a less restrictive alternative for the represented person than the appointment of a guardian.
28 It was not suggested that there was anyone in the family of the represented person who had been identified who was in the hierarchy of persons in s 119 (3) and therefore could give consent to his medical treatment and, in the words of the interpretation section of the Act (s 3), was "reasonably available at the relevant time".
29 As I understand it, the submission that there is a less restrictive alternative to the making of a guardianship order has two aspects. The first is that the day–to-day care given to the represented person including the administration of antibiotics is according to the written submission of the guardian, in the "category of general health care maintenance" and by implication does not require consent. The other aspect relates to the fact that when the represented person was admitted to hospital in January 2005 the treatment (intubation) was categorised as "urgent treatment" under s 119(1a) and that no consent was sought or was required for that treatment to be lawfully provided to him.
30 These submissions should be considered in the particular circumstances of the represented person.
31 The represented person's medical situation is complex: the guardian reported that he requires physiotherapy each day for management of the bronchiectasis, he receives a range of medications for the treatment and control of his epilepsy and chest problems and is administered antibiotics at the first sign of a chest infection to which he is prone due to the bronchiectasis. It appears that antibiotics are prescribed for this purpose
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- as the treating doctor considers that even a low–grade infection suffered by the represented person could trigger seizures.
32 In her report for the review, the guardian noted that there had been three admissions of the represented person to hospital for treatment of chest infections or for seizures in September 2004, December 2004 and January 2005.
33 The guardian reported that in October 2004 she had completed a document entitled "Resident's Wishes for Terminal Care" at the request of staff at the nursing home where the represented person lives. The instructions given in that document are as follows:
"To the statement: 'Transfer to an acute facility'. The answer is 'yes' and the following comments are made: 'Treat emergency situations immediately, Contact Public Advocate, Public Advocate to give medical consents for interventions, Actively treat illness and injury'.
- To the statement: 'To be given on site care including symptom control and not transferred' the answer is 'No'."
34 The guardian reported during the hearing that on 25 January 2005 the represented person had been admitted to the Regional Hospital in the town where he lives following seizures, which could not be controlled at the nursing home. He had been intubated but could not be kept in that state at the Regional Hospital as it lacked the resources to manage intubated patients. An attempt to have him transferred to intensive care (ICU) at a tertiary hospital in Perth had not been successful because the consultant at that hospital would not agree to his admission to the ICU on transfer.
35 The written report of the guardian states that the Office of the Public Advocate had been contacted at that time and the "after hours" guardian had advocated for the represented person with the doctors involved.
36 The file notes of the Office of the Public Advocate refer to the inability of the delegated guardian to trace the family of the represented person. The notes document the investigation of the proposed medical treatment and advocacy by an officer on behalf of the represented person that he be actively treated. This advocacy occurred in the face of a decision recorded in the file notes that the intensive care consultant had made the decision "not to admit [the represented person] to ICU based on his apparent poor quality of life and his pre morbid condition".
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37 The file notes reveal that following the advocacy by the guardian with the health care providers including the consultant it was decided by the doctors that if required the represented person would be transferred for admission to the ICU.
38 The guardian reported that after being treated with antibiotics and hospitalised at the regional hospital the represented person made a full recovery and returned to the nursing home.
39 The issue of the need for lawful consent to treatment of a person unable to give that consent has been dealt with in the past by the Tribunal and by the Full Board of the Guardianship and Administration Board.
40 The Full Board considered the position of treatment of a person unable to consent in Re BCB; Application for Guardianship Order, (2002) SR (WA)338 (BCB).
41 The approach to the law taken by the Full Board in Re BCB (supra) in respect of the issue of consent was affirmed in a more recent decision of the Board Re BTO (Unreported decision of the Full Board delivered 14 October 2004 (Hon Justice ML Barker, Presiding, Dr A McCutcheon, Member and Ms F Child, Member). In the reasons for decision in that case the Full Board referred to the earlier decision:
"This issue was addressed in Re BCB; Application for a Guardianship Order, unreported decision of the Full Board delivered 24 May 2002 (Mr K Chapman, President, Mrs P Eldred, Deputy President and Dr G Hamilton, Member) and we need not on this occasion revisit it. In short, the Board there noted that the English House of Lords in Re F (Mental Patient: Sterilization)[1990] 2 AC 1, recognised that in certain situations a medical practitioner may act in accordance with a "principle of necessity" and treat a patient without obtaining the consent of that patient. However, some doubt about the recognition of such a principle under Australian law was expressed in some of the judgments in the High Court decision in the case colloquially known as Marion's case(1992) 175 CLR 218. As a result, in Re BCB (supra) the Board thought it unwise to conclude that the general law applicable in Western Australia presently permitted a medical practitioner or any other health professional to provide treatment without a patient’s consent. With this approach to the law we respectfully agree."
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42 The delivery of medications to the represented person for the management of the number of conditions from which he suffers is medical treatment within the definition of "treatment" in s 3 of the Act. Most of the medications listed in the guardian's report are prescription only medications. These medications may only be given to the represented person because they have been prescribed by a medical practitioner. The delivery and supervision of those medications appears to be delegated to the nursing home staff since the represented person does not have capacity to manage this part of his self-care but they are none the less medical treatment and are not, in my view, "general health care maintenance" not requiring consent as submitted by the Public Advocate.
43 While this is medical treatment of the represented person it is for the management of chronic conditions and is not in the nature of "urgent treatment" as was the intubation of the represented person on his admission to the Regional Hospital in January 2005.
44 As reproduced above the definition of "urgent treatment" under the Act has a particular and more limited meaning than "treatment". The guardian's submission that consent is not required for such treatment as defined in s 119(4) is accepted but for all other lawful medical treatment of the represented person there must be consent from someone with authority to give that consent.
45 The notes of the guardian refer to a proposal by doctors to extubate the represented person both at the Regional Hospital and at the Emergency Department in Perth. This procedure is treatment which is arguably outside the scope of s 119(1a). See the discussion at paragraph 32 in Re BTO (supra).
"Urgent treatment" has the particular meaning set out in subs 119(4). It may be doubted, in circumstances such as those before the Board in a case like this, that the withdrawal of hydration and nourishment, which is being provided on a non-natural basis, can ever satisfy this definition of "urgent treatment". Withdrawal of such services in all probability will lead to the passing of the person. Thus, they are not services that are urgently needed to save the life of the person, or to prevent the person from suffering or continuing to suffer significant pain or distress."
46 The complex health issues of the represented person suggest that he will continue to require medical treatment to which he is unable to give
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- consent. There appears to be no one in his life, who is reasonably available and meets the criteria in the hierarchy of s 119(3) who could give consent to medical treatment on his behalf. The guardian did not argue that such a person is available. Equally there is no one proposed as an alternative to the appointment of the Public Advocate as guardian.
47 Unfortunately, it may also be the case that the represented person may in the future suffer a health crisis like the one which prompted his admission to hospital in January 2005. If such a crisis occurs health care decisions may need to be made on his behalf in his best interests by someone with lawful authority to make those decisions. It may also be the case that he will require urgent treatment, such as the intubation, which was performed following that admission, and in that circumstance the treatment can be given without the consent of his guardian.
48 Having said that I do not accept the submission that s 119(1a) by which urgent treatment (within the restrictive meaning given by s 119(4)), may be given to the represented person without consent, operates as an appropriate less restrictive alternative to the making of a guardianship order with the function to consent to treatment. Not all treatment falls into the category of urgent treatment and in a course of treatment which is initiated as "urgent" for a particular condition there may be treatment or decisions which may fall outside that definition. It cannot be in the best interests of the represented person that there is any ambiguity about these matters.
49 The application of s 119(1)(a) makes lawful the actions of practitioners who treat an incapable patient without consent of the substitute decision-maker (a person referred to in s 119(3)) in the limited circumstances defined in s 119(4) if it is "not practicable to obtain that consent". As such it operates as a protection for practitioners in those circumstances rather than signifying that no substitute decision maker is required for that patient to consent to his treatment. To accept the submission of the Public Advocate that the order be revoked on this ground transfers decision making regarding the health care of the represented person to the medical profession, a position which has been found not to be consistent with the law in Australia (see the discussion in Re BTO (supra).
50 The submission of the Public Advocate that there is no need for a guardian as the guardian's consent to treatment has not been sought is not accepted on the evidence provided by the guardian in her written submission and in the hearing.
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51 The nursing home staff properly identified the role of the guardian as substitute decision maker for the represented person in asking that she complete the document entitled "Resident's wishes for terminal care" on his behalf and in the notification to the Office of the Public Advocate of the represented person's transfer to hospital in January 2005.
52 The file notes dated 25 January 2005 by the staff at the Office of the Public Advocate confirm for the Tribunal the critical role played by that office in advocating for the best interests of the represented person regarding his medical treatment.
53 The notes of the conversation with the treating doctor at 5.20 pm on 25 January 2005 confirm the recognition of the role of the guardian as decision maker in the matter of medical treatment for the represented person. The file notes refer to the possible extubation of the represented person and notes the "Hospital is not comfortable making this decision" or in making the decision to "do palliative care either".
54 Although the contact with the health care providers was initiated by the Public Advocate's staff following notification by the nursing home staff of the hospitalisation of the represented person, it appears that once the doctors were made aware of the guardian and she exerted her authority in this regard that they accepted the role of the guardian regarding consent to medical treatment.
55 For the reasons above I find that there is a need for a guardian with the functions to make health care decisions on behalf of the represented person.
56 The represented person's disabilities, his isolation from family supports and his inability to advocate on his own behalf make him a highly vulnerable person. A guardian acts in the best interests of the represented person when she acts as an advocate for him (s 51(2)(a)). Had it not been for the advocacy of the staff of the Public Advocate in representing the best interests of the represented person that he be actively treated for his chest infection in January 2005 the outcome for him may have been quite different following his admission to hospital. This fact only strengthens the need for the appointment of an independent guardian for him.
Orders:
1. The order which appoints the Public Advocate as limited guardian with the following function:
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- 2. Subject to Division 3, to consent to any treatment or health care of the represented person is confirmed.
3. The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
4. The Tribunal will commence a review of this order by 30 August 2010.
I certify that this and the preceding [56] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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