KH and NH - [2015] WASAT 45

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: KH and NH [2015] WASAT 45

MEMBER: MR M ALLEN (SENIOR SESSIONAL MEMBER)

HEARD: 4 DECEMBER 2014, 22 JANUARY AND 20 APRIL 2015

DELIVERED : 20 APRIL 2015

FILE NO/S: GAA 4301 of 2014

BETWEEN: KH
Applicant
AND
NH
Represented Person

Catchwords:

Guardianship and administration Application by daughter for appointment of guardian for mother Mother suffering from psychiatric illness for many years Evidence of frequent relapses due to noncompliance with prescribed medication Current hospitalisation and refusal to accept medication for diabetes, putting physical health at risk Need for family involvement in decisionmaking regarding treatment, accommodation, services, obtaining information and advocacy Limited guardianship order made

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 43
Mental Health Act 1996 (WA), s 110

Result:

Guardianship order made

Summary of Tribunal's decision:

The Tribunal considered an application by a daughter (KH) for the appointment of a guardian for her mother (NH). NH has for many years suffered from a psychiatric condition involving a mood disorder and floridly psychotic symptoms when she is manic. NH has been the subject of an administration order since 2004.
NH's mental state fluctuates considerably according to whether she is manic or not, but over the years she has had many admissions to psychiatric hospitals and has generally needed to be treated as an involuntary patient. Most recently NH has been readmitted to a psychiatric hospital where she is presently described as being floridly psychotic with considerable symptoms consistent with her illness.
The Tribunal accepted the evidence of her treating psychiatrist that NH is currently unable to make reasonable judgments concerning her personal affairs, is unable to look after her own health and safety, and is generally in need of oversight care and control in the interests of her own health and safety.
The Tribunal considered that there is a need for a guardianship order because NH will benefit from having her family members involved to a greater extent in matters concerning her health and welfare and because she has resisted such involvement in the past at times, including refusing to consider making an Enduring Power of Guardianship. The Tribunal concluded that the guardianship orders sought should be granted and that KH should be appointed as limited guardian with powers to make decisions in relation to treatment, accommodation, services, obtaining information on behalf of NH, and advocating generally on her behalf.
The Tribunal ordered that the guardianship order be reviewed after six months when the position regarding NH's recovery from her current episode of illness can be reviewed.

Category: B

Representation:

Counsel:

Applicant: In Person
Represented Person : Ms J Musk (for hearings on 4 December 2014 and 22 January 2015)

Solicitors:

Applicant: N/A
Represented Person : Mental Health Law Centre (WA) Inc (prior to 20 April 2015)

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Background

These proceedings concern NH, a 55yearold woman who lives in a country town in Western Australia. She has two adult daughters, KH and CH, both of whom are married and live in the metropolitan area.
NH has for many years suffered from a chronic mental illness that has required treatment as an outpatient and as an inpatient, usually as an involuntary patient under the Mental Health Act 1996 (WA) (MH Act).
The present proceedings involve an application by KH for a guardianship order for NH. On 20 April 2015 I made a guardianship order and these are the reasons for doing so.
NH has never previously been the subject of a guardianship order under the Guardianship and Administration Act 1990 (WA) (GA Act). However, she has been the subject of an administration order under the GA Act since October 2004, at which time KH was appointed as her limited administrator with powers relating to dealing with any credit obtained by NH and any telephone services that she may contract for. NH was at the time of that order an inpatient at Graylands Hospital.
In October 2009, that administration order was reviewed and a further order made appointing KH and CH as joint administrators with the same powers in relation to credit and telephone services but with the additional power to take steps to protect and secure NH's interest in her residential property.
The order was again reviewed in October 2014 when the same order was made, with that order to be further reviewed in October 2019. NH was at the time of the hearing an inpatient at Bunbury Hospital.
I understand that it was as a result of the concerns expressed by NH's daughters at that time and the discussion that occurred at the hearing of the Tribunal in October 2014 that the present application for a guardianship order was lodged.
A hearing was rescheduled for 4 December 2014. NH was represented by the Mental Health Law Centre and was expected to participate in the hearing by video conference. The Tribunal was advised that, at the last minute, NH had advised that she did not wish to attend the hearing, but her clear instructions to her representative were that she opposed the making of any guardianship order and considered it unnecessary. In the event I decided not to proceed to determine the application that day because there did not appear to be any particular urgency and I wanted NH to have the greatest opportunity possible to participate in the hearing and to make her views and wishes known.
A further hearing was scheduled for 22 January 2015 to be held in the country town in which NH resides so that she could attend in person, with some other interested parties participating by telephone conference from Perth. Regrettably, some technical issues meant that participation by NH's legal representative and the representative of the Public Advocate was difficult. The Tribunal was advised that NH's legal representative was without current instructions.
Also regrettable was that after only a short period of time NH decided that she did not wish to participate in the hearing and left the hearing room. She was not able to be persuaded to stay. She was, however, able to make clear in the short time that she was at the hearing that she opposed any guardianship order because she believed that she could make decisions for herself and no order was justified.
Apart from NH, that hearing was attended by KH: and her husband; CH and her husband; Dr C (who has been NH's treating psychiatrist for many years in the community); MP (who is a community mental health nurse and NH's case manager at the local community mental health service; and MN (who is NH's sister-in-law). Subsequently, the hearing was also joined by DT, who is also a community mental health nurse who had been NH's case manager for some years in the past.
I reserved my decision on the application at that time but, before I was able to deliver the decision, the Tribunal was contacted by KH and by persons from Graylands Hospital advising that circumstances had changed since the January hearing – in that NH had been admitted as an inpatient at Graylands Hospital and that significant issues had developed in relation to her medical treatment for diabetes.
Consequently, it was decided that the best course was to convene a further hearing so that the Tribunal could be fully informed about NH's current situation and a decision made in relation to guardianship that reflected that situation.
The hearing held on 20 April 2014 was attended by: KH and her husband; Dr N (who is a consultant psychiatrist treating NH); JD (who is a social worker at Graylands Hospital); BM (a member of the council of official visitors who spoke on behalf of NH); and MO (a community mental health nurse and NH's current case manager at the community mental health service in her town of residence). The Tribunal had been advised that the Mental Health Law Centre no longer represented NH and that NH had decided she did not want to attend the hearing.
BM, on behalf of NH, asked that the hearing be adjourned because she thought her family did not know the details of her circumstances and she believed there was some kind of an agreement with her treating team that she would be given a few weeks to deal with her diabetes without medication.
I determined that it would not be in NH's best interests to adjourn the hearing for the reasons that will emerge later in these reasons. I considered that it was necessary that a guardianship application be determined in NH's best interests at this time.

Statutory framework

Section 43 of the GA Act provides that the Tribunal can make a guardianship order if it is satisfied that (relevantly in NH's case):
a)NH is 18 years or over this requirement is obviously satisfied.
b)One or more of the following applies: NH is incapable of looking after her own safety; NH is unable to make reasonable judgments about matters relating to her person; or NH is in need of oversight care or control in the interests of her health and safety or for the protection of others. I note, on the information before me, that no issue arises in these proceedings regarding the protection of other persons.
c)NH is in need of a guardian in the sense that there are decisions to be made or other matters to be dealt with of a personal kind that NH is unable to make or make reasonably, and which cannot be made or dealt with by other persons because they lack the authority to do so.
Section 4of the GA Act sets out some principles that the Tribunal must observe when determining matters of this kind. The principles are well known but, briefly, can be summarised as follows:
a)The primary concern of the Tribunal must be NH's best interests.
b)NH is, relevantly, to be presumed to be capable of looking after her own health and safety, making reasonable judgments about matters relating to her person, and managing her own affairs until the contrary is proven to the Tribunal's satisfaction. I note that s 4 does not expressly state that there is a presumption that NH is not in need of oversight care or control in the interests of health and safety but the generality and breadth of the other presumptions specified suggest that at least there will be a starting point that she will not be in such a need.
c)A guardianship order should not be made if NH's needs can be met by other means less restrictive of her freedom of decision and action, and any order made should be in terms that impose the least restrictions possible on her freedom of decision and action.
d)The Tribunal should, as far as possible, seek to ascertain NH's views and wishes as expressed at the present time or as gathered from her previous actions.

Capacity

I turn now to consider NH's ability to make reasonable judgments about personal matters and to generally manage her personal affairs. I note that the existence of the administration orders since 2004 implies that on three occasions the Tribunal has been satisfied that NH has in the past, and in October 2014, continued to suffer from a mental disability, namely, a psychiatric condition that causes her to be unable to make reasonable judgments about at least part of her financial affairs. NH has not opposed those orders and has supported their continuation, with her two daughters performing the limited administration role.
More importantly, it is clear that NH has suffered from a psychiatric condition for over two decades and has had many admissions to psychiatric wards over the years to receive treatment. The Tribunal was provided with information for the October 2014 hearing (by the social worker at the hospital where NH was an inpatient) that NH's records showed that she had been admitted at least 14 times to various hospitals, mostly Graylands Hospital, between 2003 and 2014. Dr C told me at the January 2015 hearing that those admissions have been invariably involuntary admissions. She has now had a further involuntary admission to Graylands Hospital.
I accept Dr C's evidence that the admissions have become more frequent as NH ages because her episodes of psychosis (always mania) have become more frequent and more intense. That view is consistent with the evidence of CH and KH.
As to the actual diagnosis of the psychiatric condition, there has been some differences, with it sometimes diagnosed as Bipolar Affective Disorder (BPAD) and sometimes as a schizoaffective disorder. According to Dr C, the main clinical difference between the two conditions is that with BPAD, the patient will have psychotic symptoms only when there is an episode of a mood disorder, whereas with a schizoaffective disorder the patient may have psychotic symptoms even when there is no mood disturbance. Dr C favours the diagnosis of BPAD for NH.
Whatever the correct clinical diagnosis, it is clear that NH has in recent years suffered increasing and more intense episodes of mania with psychotic symptoms, and that these have affected her functioning greatly and necessitated numerous, sometimes prolonged, hospital admissions. Dr C and family members said and I accept that NH's compliance with prescribed medication over the years has been generally poor which has contributed, to a great extent, in her relapsing and requiring admission to hospital. I accept that oral medication has proven to be not effective because of these compliance issues and that NH has been tried on numerous forms of injectable medication. Injectable medication has helped deal with poor compliance at times but NH has often been very unhappy with this form of medication because of perceived side effects.
The most important issue at the present time is what effect this psychiatric condition has had on NH's functioning and her capacity to look after her health and safety, and to manage her personal affairs generally, to which I now turn.
For the October 2014 hearing in relation to the administration order, the Tribunal had reports from Dr C and from Dr M (who was NH's treating psychiatrist during her admission at that time, which had commenced in midAugust 2014 and was continuing at the time of the October hearing). Dr C (who had not seen NH since July 2014) referred to frequent manic relapses and said that she was incapable of making reasonable decisions when unwell. Dr C also said that, although NH was capable of making decisions when not manic, the decisions she made about her financial affairs and her living circumstances at these times were poor. Dr M thought that NH's capacity for complete recovery without relapses was poor, and that she was incapable of reasonable decisions about her personal health care and finances when unwell (as at that time), but was capable of making decisions in relation to her living situation.
After the December 2014 hearing, Dr C and Dr McG NH's general practitioner for more than five years, provided further reports. Dr C referred to the frequent relapses due to non-compliance and the nature of NH's illness, and reiterated that NH was incapable of reasonable decision-making when unwell. He thought she was capable at that time (although I note he had not seen her since July 2014) and she had missed an appointment in November 2014, as a result of which a community treatment order that NH was on since her discharge from hospital had expired and could not be renewed. Dr McG noted he last saw NH in October 2014. He said that she had little insight into her psychiatric condition and was often non-compliant with medication. At her best, NH could function reasonably well but even then her decisions are impulsive and unrealistic. When she is psychotic NH's thinking is disordered and she has limited capacity for rational thinking. Overall Dr McG thought NH was not capable of decisionmaking about personal healthcare and finances but he was not sure about her capacity regarding her living situation.
I summarise the oral evidence given at the January 2015 hearing (after NH had left the hearing) as follows.
Dr C and NH's two daughters agreed that NH's illness had become worse over the last 18 months to two years.
Although there seemed to be a consensus that at that time NH's mental state was reasonable, there was concern expressed about her behaviour in recent times.
By way of example, CH and KH reported NH as being aggressive towards them, and CH said that NH had threatened to kill her husband and had reported to police false claims about domestic violence by CH's husband.
MP reported that NH abused her whenever she tried to make contact with her to check how she was going. NH believes that everyone is working against her.
MN reported that she had previously seen NH regularly and had a good relationship with her and provided social support for her. However, about two months previously, NH had severed the relationship and told MN not to visit her house. NH had also told an uncle, who had been a frequent visitor, not to come to her house, and NH had barricaded the driveway of her house so visitors could not enter. NH appeared to believe that everyone was trying to remove her from her home.
There was a consensus that, when manic, NH became floridly psychotic with symptoms including grandiosity, extreme religiosity, and paranoia regarding her house and other people's intentions towards her.
Despite the view that NH's mental state was somewhat better at that time, all concerned were of the opinion that, as had frequently happened in the past, NH would eventually reduce her acceptance of injectable medication and that there was then a high likelihood that sooner rather than later her mental state would decline and she would relapse into a manic state. I accept that view was a reasonable one at the time and has, it seems, been borne out by NH's admission to Graylands Hospital since that hearing.
For about six weeks NH has now been an involuntary inpatient at Graylands Hospital on referral from her local hospital. MO told the Tribunal that NH had been brought to her local hospital by police in a very poor mental state due, she understood, to non-compliance with medication. Dr N provided a report to the effect that: NH was currently very deluded and paranoid and litigious, consistently refusing medication for her psychiatric condition and diabetes; her psychiatric condition was described as treatment-resistant and NH was said to be totally insightless about its existence or effects upon her; NH's behaviour had been very difficult to control in hospital; and she was quite incapable at the present time of reasonable decisionmaking about any matter. A social worker at Graylands Hospital provided a further report to similar effect, noting that NH was agitated, angry, and abusive, expressing her psychotic beliefs.
At the 20 April 2015 hearing, JD read out a long statement prepared by NH. So far as it was relevant, it focused on what NH thought was some kind of an agreement with her treating team regarding how her diabetes was to be treated. NH asserted that she does not suffer from a mental illness but expressed considerable paranoid views about the role played by her brother and his wife in having her committed to hospitals for treatment over the years and having designs on her house for reasons connected with their jealousy of her.
Dr N denied that there was any such agreement with NH regarding the treatment for diabetes without medication, but informed the Tribunal that the Chief Psychiatrist had recently authorised the treating team to treat NH's diabetes pursuant to s 110 of the MH Act and that this would permit the treating team to use a degree of coercion to ensure the treatment was received. Dr N said that NH's behaviour at the hospital had been very disorganised and unruly and that she was completely insightless regarding her condition and, as had been the case in the past, it was expected that the current admission would be a lengthy one probably months rather than weeks.

Prior to the hearing on 20 April 2015, the picture regarding NH's ability to make reasonable judgments about, and manage, her health, safety and lifestyle was less clear. Her mental state fluctuated as did her ability to function and live independently. On balance, at the time of the January 2015 hearing, it seemed to me that:
a)NH was, by virtue of her longstanding mental illness and the significant effects it had had on her functioning, at least a person who was in need of oversight care and control in the interests of her health and safety;
b)for considerable periods of time, when unwell, NH was quite incapable of making reasonable judgments about personal affairs and caring for her health and safety; and
c)even when she was relatively well, NH's decisionmaking was impulsive, irrational and unrealistic with little or no real insight into her mental illness and its effect on her.
It is significant, I think, that even after her discharge from hospital in late 2014, when it seemed her mental state was thought to be better than previously, NH withdrew from supportive relationships, was aggressive and abusive towards family members and others trying to help her, and generally exhibited a considerable degree of paranoia and resentfulness towards those trying to help.
The position now is different and much more serious. I accept the evidence of Dr N that NH's mental state and her functioning and behaviour has deteriorated significantly, precipitated by her predicted eventual noncompliance with medication. She is now in a poor mental state and her physical health is at significant risk without appropriate treatment. I am satisfied that the effects of her mental illness are presently such that NH is currently unable to make reasonable judgments about her personal affairs, she is unable to look after her own health and safety, and she is generally in need of oversight care and control in the interests of her health and safety. I am satisfied that the evidence shows that the presumptions of capacity referred to above are rebutted and that NH is a person for whom a guardianship order can be made.
It is clear, in my view, that there is a need for a guardianship order and that less restrictive alternatives will not be appropriate. I note that the Public Advocate's representative has informed the Tribunal that prior to the January 2015 hearing, he discussed with NH the possibility of her making an Enduring Power of Guardianship to deal with those situations when she was incapacitated. However, NH had completely refused to contemplate that possibility.
Dr C said at the January 2015 hearing that greater family involvement was essential when NH was unwell because of her floridly psychotic condition at those times - and even when she was relatively well it would be desirable. This was because the decisions NH made at those times were impulsive and bad ones even though they might not be informed by or secondary to her mental illness. NH has mostly chosen not to involve family members in her dealings with mental health services but did sometimes call on family members for help which was always forthcoming and helpful. Dr C believed there was a need for some sort of formal arrangement involving family members rather than a voluntary one, so that family involvement could be activated in a prospective way and quickly. NH does not see the need for family involvement most of the time. Dr C noted that the danger of a formal arrangement was that it might make NH angry if she felt it was imposed on her to such an extent as to make the arrangement unworkable.
That last point is an important one, but I accept the opinion expressed by KH and CH at the January 2015 hearing that they thought the benefits of a guardianship order would outweigh the risks of NH being angry and alienated from them.
A guardian for NH will need to be able to make decisions in relation to ongoing medical and psychiatric treatment (other than those treatment decisions made by treating psychiatrists whilst NH is an involuntary patient). Eventually, there will be a need for discharge planning for NH, which will require decisions to be made about where NH lives (although there is presently no plan to have her live anywhere other than her own home) and in relation to the services that will be needed to assist her to live in the community. In addition, both NH's daughters have identified in the past a need for family members to be better able to engage with the various professionals who treat and deal with NH from time to time. It is apparent that communication with all of these various people has not been particularly good at times in the past, and I believe that is most likely to be due to NH's attitude of keeping family members distant from treating personnel. I consider that it will be in NH's best interests if her guardian has the ability to obtain information from various sources on behalf of NH and the ability to advocate generally on her behalf with treating personnel and others who are involved in NH's care and welfare.
Accordingly, I propose that the guardian be given the powers of making decisions in relation to treatment, accommodation, services, obtaining information and advocating generally.

Who should be appointed

Although the initial application was made by KH, the hearings in December 2014 and January 2015 proceeded on the basis that KH and CH sought a joint appointment so that they could both have formal roles in relation to decision-making on behalf of their mother. It appears that some differences have arisen between KH and CH since the time of the January 2015 hearing but CH informed me at the 20 April 2015 hearing that she was happy for KH to be appointed alone as guardian for NH. It is the case that KH has taken it upon herself to make and pursue the application to the Tribunal and I agree with the Public Advocate's representative that she would be a suitable person to be appointed as guardian.
That leaves only the question of when the order that I am making should be reviewed. It is unclear how long NH will remain in hospital, but I accept Dr N's view that it is likely to be months rather than weeks. Depending on her progress in recovery it may be that the orders will not be required at all or will not be required in their present form indefinitely. Accordingly, and also because NH did not attend the final hearing, I propose that the orders will be reviewed by the Tribunal at the end of six months.

Orders

For the reasons set out above I made a guardianship order (to be received after six months) whereby KH is appointed as NH's limited guardian with the following functions:
(a)To decide where the represented person is to live, whether permanently or temporarily;
(b)To decide with whom the represented person is to live;
(c)Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to make treatment decisions for the represented person;
(d)To determine the services to which the represented person should have access;
(e)To obtain, from any source, information of any kind (including confidential information) concerning the represented person to the same extent as the represented person would herself be able to obtain such information; and
(f)To advocate generally to any person or organisation on behalf of the represented person in relation to any matter or issue concerning the represented person's health, welfare or living circumstances.

I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M ALLEN, SENIOR SESSIONAL MEMBER