LJH
[2007] WASAT 139
•1 JUNE 2007
LJH [2007] WASAT 139
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 139 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:418/2007 | 24 APRIL 2007 | |
| Coram: | MR M ALLEN (SENIOR MEMBER) | 1/06/07 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Public Advocate's appointment as plenary guardian of the represented person is confirmed | ||
| B | |||
| PDF Version |
| Parties: | LJH |
Catchwords: | Guardianship and Administration – Review of guardianship order – Public Advocate appointed as plenary guardian – Represented person wishing to make decisions for herself – Limited need for guardian to make decisions during the course of the order and prospect that guardian would not be called upon to make many decisions in future – Represented person suffering from mental illness and alcohol dependence – Represented person remains unable to look after her own health and safety, is unable to make reasonable judgments in respect of matters relating to her person, and is in need of oversight care or control in the interests of her health and safety – Consideration of role of guardian beyond formal decisionmaking on behalf of the represented person – Finding that represented person continues to need a plenary guardian who can make decisions on her behalf but who can also provide additional care and representation for the represented person |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4(2)(c), s 4(2)(d), s 4(2)(e), s 4(2)(f), s 43, s 43(1), s 43(1)(b), s 43(1)(c), s 51(1), s 51(2), s 84, s 119 |
Case References: | LGW [2004] WAGAB 4 |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : LJH [2007] WASAT 139 MEMBER : MR M ALLEN (SENIOR MEMBER) HEARD : 24 APRIL 2007 DELIVERED : 1 JUNE 2007 FILE NO/S : GAA 418 of 2007 BETWEEN : LJH
- Represented Person
Catchwords:
Guardianship and Administration – Review of guardianship order – Public Advocate appointed as plenary guardian – Represented person wishing to make decisions for herself – Limited need for guardian to make decisions during the course of the order and prospect that guardian would not be called upon to make many decisions in future – Represented person suffering from mental illness and alcohol dependence – Represented person remains unable to look after her own health and safety, is unable to make reasonable judgments in respect of matters relating to her person, and is in need of oversight care or control in the interests of her health and safety – Consideration of role of guardian beyond formal decisionmaking on behalf of the represented person – Finding that represented person continues to need a plenary guardian who can make decisions on her behalf but who can also provide additional care and representation for the represented person
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Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2)(c), s 4(2)(d), s 4(2)(e), s 4(2)(f), s 43, s 43(1), s 43(1)(b), s 43(1)(c), s 51(1), s 51(2), s 84, s 119
Result:
Public Advocate's appointment as plenary guardian of the represented person is confirmed
Category: B
Representation:
Counsel:
Represented Person : Represented Person
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
LGW [2004] WAGAB 4
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Summary of Tribunal's decision
1 The Tribunal reviewed a guardianship order made one year ago appointing the Public Advocate as the plenary guardian of the represented person. In the time since that order, the guardian had been called upon to make only a few decisions and the represented person generally attempted to make all decisions on her own behalf – and accepted decisions made by others only if she agreed with them.
2 The Tribunal concluded that the represented person continued to be, due to her mental disability, incapable of looking after her own health and safety, unable to make reasonable judgments in respect of matters relating to her person, and in need of oversight care and control in the interests of her own health and safety.
3 The Tribunal considered that the fact that the guardian had been called upon to make only a few decisions on behalf of the represented person did not mean that a guardianship order did not continue to be needed. The Tribunal considered the role of a guardian, noting two alternative approaches – one that involved a guardian being only a substituted decision-maker, and the other involving a guardian being, in addition, a person who has a broader responsibility for the care and general wellbeing of the represented person. The Tribunal considered the latter approach to be the one contemplated by the Guardianship and Administration Act 1990 (WA) and considered that there was a continuing role for a guardian to make those decisions that may need to be made for the represented person but also to provide the wider support and care that may be needed.
4 The Tribunal considered that a plenary order continued to be appropriate in the circumstances.
Background
5 Ms LJH is a 29-year-old woman in respect of whom, in April 2006, the Tribunal made guardianship and administration orders as a result of LJH's sister making applications for such orders. The Public Advocate was appointed as LJH's plenary guardian and the Public Trustee was appointed as the plenary administrator of her estate. The guardianship order was to be reviewed by 26 April 2007 and the administration order was to be reviewed by 26 April 2011.
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6 Since the making of those orders LJH has on two occasions applied to the Tribunal for the administration order to be reviewed, but on both occasions the Tribunal confirmed the order as originally made.
7 In accordance with its obligation under s 84 of the Guardianship and Administration Act 1990 (WA)(GA Act) the Tribunal convened a hearing on 24 April 2007 to review the guardianship order. The hearing was attended by LJH, Ms Gitonga (an officer of the Public Advocate and the person to whom the Public Advocate's responsibilities as guardian had been delegated), Mr RH (father of LJH), and Ms Kirk and Ms Trinh (both of whom are social workers at the Mirrabooka Mental Health Service. Ms AW, who is LJH's mother, also participated in the hearing by way of telephone. Towards the end of the hearing LJH became agitated and left the hearing, which continued in her absence.
8 At the conclusion of the hearing the Tribunal reserved its decision and this Statement of Reasons is published to explain the reasons for the decision set out herein.
The issues to be determined
9 In the review of a guardianship order such as the present, the Tribunal must decide whether the existing order should continue to have effect in its original or amended form or be discharged. Before a guardianship order can be made or confirmed on review, the Tribunal must be satisfied that the preconditions for the making of a guardianship order as set out in s 43(1) of the GA Act are made out. That provision relevantly provides that the Tribunal may appoint a guardian if it is satisfied that the person concerned:
"(a) has attained the age of 18 years;
(b) is —
(i) incapable of looking after his own health and safety;
(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;
and
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- (c) is in need of a guardian ... "
10 There is no dispute that LJH has attained the age of 18 years.
Section 43(1)(b)
11 This provision sets out three alternative states of affairs, only one of which need be satisfied in a particular case.
12 The Tribunal has, from the various applications made and dealt with concerning LJH, a number of reports from psychiatrists and social workers that record LJH's long history of mental health problems and alcohol dependence. The most recent report, dated 2 April 2007, is from Dr Monkhouse at the Mirrabooka Clinic who refers to a diagnosis of borderline personality disorder with alcohol dependence and a differential diagnosis of schizo-affective disorder. Dr Monkhouse expresses the opinion that she is not sure about LJH's capacity to make reasonable decisions regarding her personal healthcare and living situation, observing that LJH's capacity fluctuates according to the level of alcohol use and psycho-social stresses, which in turn affect her engagement with treatment and the expression of mental health issues.
13 At the hearing LJH acknowledged that she had trouble making decisions and needed help in decision-making. She said that her main problem was that she made poor decisions that put her safety at risk. She agreed that her decision-making and ability to make reasonable judgments were most affected when she was drinking alcohol to excess, or when she wanted to obtain alcohol. In those situations she made decisions that put her safety and general wellbeing at risk. LJH conceded that this is most of the time at the moment – in other words that it is more often than not the case that she is adversely affected by alcohol or a desire to obtain it.
14 The evidence from Mr RH, Ms Gitonga and Ms Kirk was to the effect that LJH currently lives in a dysfunctional and turbulent relationship with a man who is the father of her child (born in November 2006) and who also has mental health and drug dependence issues. LJH also has an eight-year-old daughter who lives with LJH's sister. The younger child is presently living with a member of LJH's partner's family.
15 The Tribunal was also told that since the making of the orders in April 2006 LJH had been admitted to several hospitals on a number of occasions, usually in the context of an attempted suicide or having made threats to attempt suicide.
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16 Having regard to that evidence the Tribunal is satisfied that LJH is a person who is incapable of looking after her own health and safety, largely by reason of her inability to make reasonable judgments in respect of those matters. In addition, the Tribunal is satisfied that LJH is a person who is in need of oversight care and control in the interests of her own health and safety. The Tribunal is satisfied that LJH meets each of the criteria set out in s 43(1)(b).
Section 43(1)(c) – Need
17 Apart from meeting the "capacity" tests set out in s 43(1)(b), the person concerned must also be in need of a guardian under s 43(1)(c). This requirement must be read in the light of GA Act s 4(2)(c), which relevantly provides that a guardianship order shall not be made if the needs of the person could be met by other means less restrictive of a person's freedom of decision and action. Further, a plenary guardian should not be appointed if the appointment of a limited guardian would be sufficient to meet the needs of the person, and the appointment of a limited guardian should be in terms that impose the least restrictions possible in the circumstances on the person's freedom of decision and action: s 4(2)(d) and s 4(2)(e). Finally, the Tribunal must as far as possible seek to ascertain the views and wishes of the person concerned: s 4(2)(f).
18 In April 2006, when the guardianship order was made, LJH was a patient in the psychiatric ward of a public hospital and was in the early stages of her pregnancy. She had no permanent accommodation at the time.
19 In a report provided to the Tribunal by the Public Advocate, and confirmed by Ms Gitonga in her oral evidence at the hearing, it is said that LJH had been discharged from hospital to supported accommodation without the guardian's consent being obtained and that subsequently LJH moved in with her partner and they subsequently moved to another property without any consent of the guardian being obtained. Subsequently, the guardian was able to assist in obtaining Homeswest accommodation for LJH and the guardian consented to her living in that property (with the lease in her name) and the guardian consented to LJH's partner living with her at that property and arrangements were made by the guardian, with the Public Trustee, for the partner to make financial contributions to the household.
20 Since then, LJH has made requests to the guardian that she be able to move into supported accommodation (which involves giving up the
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- Homeswest house) but the guardian has refused to consent to such a move. In relation to contact between LJH and her children, the guardian made efforts to put in place formalised contact arrangements between LJH and her older daughter but such formal arrangements did not seem to suit LJH, and the contact that has occurred has been by way of informal arrangement between LJH and her mother and father and other members of her family or her partner's family.
21 The guardian reports to the Tribunal that since the order was made, the guardian has not been asked to consent to any decisions relating to services for LJH and that LJH herself has engaged with a number of services during the course of her pregnancy, including social support and counselling. The report notes that LJH's ability to engage with support services has deteriorated since the removal of her second child and her subsequent return to the use of alcohol.
22 In terms of the likely future decision-making that the guardian might be called upon to make, the report from the guardian states that there is no reason why the Homeswest accommodation should not continue, with accommodation expenses being arranged and paid by the Public Trustee, even though LJH at times wishes to have other accommodation. The guardian, LJH's treating psychiatrist and her family members believe that supported accommodation is not a viable alternative or in LJH's best interests. The guardian says that contact between LJH and her children is likely to continue to occur by informal arrangements put in place with family members, and no decisions by the guardian are likely to be needed. In terms of services it is said that it is unlikely that the guardian will be called upon to make any decisions because any engagement by LJH with service providers is dependent on her wanting to be so engaged.
23 The guardian's report notes that LJH's parents both believe that she needs to have a guardian in place as a support for her in all areas of her life, even though they recognise that LJH will always want to make her own decisions and is unlikely to engage with services or accept decisions if she does not agree with them.
24 The report notes that LJH's treating psychiatrist considers that it is unclear whether having a guardian is of any benefit to LJH because of her lack of commitment to follow through with supports that are offered and her wish to engage only if she chooses to do so. Ms Kirk confirmed that was the overall position of the Mirrabooka clinic and that they were prepared to deal with LJH on the basis that she would decide what services and other assistance she would accept.
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25 LJH told the Tribunal that she wanted to maintain as much independence as possible and she would always try to make her own decisions and would not accept decisions made on her behalf if she did not agree with them. Nevertheless, she told the Tribunal that she thought the existence of a guardian had been helpful to her as it had provided her with extra support at times and it was a useful fallback position.
26 The overall picture, therefore, presented to the Tribunal from the evidence is one of a person who has seriously diminished capacity to make reasonable judgments about her person and living circumstances due to her mental illness and alcohol dependence, but who wishes to maintain as much independence in decision-making as possible, however problematic those decisions may be. Nevertheless, LJH does recognise the benefit of having someone to whom she can turn for support and advice, and it appears that LJH has a good relationship with Ms Gitonga.
27 In the light of the above position, the guardian's report concluded by acknowledging LJH continues to require a great deal of support in a number of areas, some of which are already in place through her family, the Public Trustee and the Mirrabooka clinic, but it is unclear whether the required support could be ensured through the continuation of a guardianship order. The report concludes that the guardian does not consider that there is a current need for decisions to be made regarding accommodation, services or contact and there has not been a need to make decisions in any other area during the life of the guardianship order.
28 The case is another example of a situation that illustrates the differing views of the legislation discussed in the decision of the Full Board of the Guardianship and Administration Board in the case of LGW [2004] WAGAB 4. The Board described one view of the role of a guardian as being the "authoritative decision-making" role where it is necessary to identify a decision-making function for a guardian and where any "advocacy" function is incidental to that decision-making rather than being a stand alone function: LGW at [30]. The alternative view of the legislation, and the one the Board ultimately favoured, was to equate the role of a guardian with the parental responsibility of a parent which might involve " ... making enquiries, obtaining information, seeking assistance, marshalling services or making submissions on behalf of the represented person as well as being the 'voice' with legal standing to assert the best interests of the represented person ... ": see LGW at [34] and the references therein. On this view, the role of a guardian encompasses not only authoritative decision-making but also all the other duties, powers
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- and responsibilities that a parent may have and exercise in relation to a child.
29 The latter view of the role of a guardian is, in my opinion, the correct one. It is entirely consistent with the terms of s 43 of the GA Act that focus not on formal decision-making capacity but, rather, on a person's capacity to look after him or herself, to make reasonable judgments, and whether or not care, oversight and control are needed. It is notable that it is an approach that is consistent with the conclusions of the Australian Law Reform Commission in its report published in 1989 (that is, shortly before the finalisation of the GA Act) in which the Law Reform Commission recognised a distinction between two types of intervention in the guardianship area – namely a "substitute decision-making" model and a "care" model. The principal distinction between the two models was that the former was based upon an assessment that the person needed to make decisions about welfare or health and lacked the legal capacity to make those decisions, whereas the "care" model required not only a lack of legal capacity to make decisions but also an inability of the person to manage his or her day-to-day life and his or her needs except by the appointment of a guardian: Australian Law Reform Commission, Guardianship and Management of Property, 1989 at par 4.4 to par 4.7.
30 My conclusion is that LJH is a person who has fluctuating capacity to make decisions about her health and welfare and her person (and it appears that at times providers of medical services and others accept that she has some capacity in that regard, albeit fluctuating), but she is also a person who, at the present time, is unable to make reasonable judgments in respect of matters relating to her person and she is in need of oversight, care and control in the interests of her health and safety. A plenary guardian of LJH must act according to her opinion of the best interests of LJH, which will involve acting, as far as possible, as her advocate; in a way that encourages and assists LJH to become capable of caring for herself and making reasonable judgments for herself; in a way that protects LJH from neglect, abuse or exploitation; and in consultation with LJH, taking into account as far as possible her wishes: GA Act s 51(1) and s 51(2).
31 There is some validity in the Public Advocate's point of view that because the guardian has been called upon to make very few decisions and it is unlikely that LJH will accept decisions made for her in the future unless she agrees with them, there may not be a need for a guardian. Nevertheless, in my opinion, that approach assumes a role for the
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- guardian that is too narrow and does not take proper account of the more general "caring" role that a guardian should undertake.
32 In any event, it is by no means clear that the guardian will not be called upon to make decisions in the foreseeable future. The evidence is that LJH has in the last year made several suicide attempts, at least one of which was described by her father as a serious attempt that, fortunately, failed. Should a further attempt involve LJH losing consciousness or being otherwise incapable of making any decision about treatment then some other person would be called upon to make decisions for her. In the absence of urgency in the need for treatment, under s 119 of the GA Act, and in the absence of a guardian, it would be LJH's de facto partner who would be first in the hierarchy of persons able to give consent. Although the Tribunal has no specific information about LJH's partner, the evidence was that there is a dysfunctional and turbulent relationship and the partner has mental illness and drug dependency problems. Less dramatically, the evidence is that within the last 12 months LJH has wished at times to give up her Homeswest house and move to supported accommodation, which, as noted above, is regarded by her guardian and family as being inappropriate and not in her interests. Ms Gitonga said that on one occasion she convinced LJH that such a move was not a good idea. It must be a real possibility that LJH will wish to change her accommodation arrangements in the foreseeable future and a guardian, acting in the manner referred to above, would no doubt attempt to persuade not to change the arrangements – but in the absence of success in persuasion it would be necessary for the guardian to make a decision on behalf of LJH about accommodation arrangements.
33 In the circumstances it is difficult to predict what decisions the guardian may be called upon to make, if any, but in my opinion it is clear that there is a role for a guardian to play in generally counselling and supporting LJH in the manner that has occurred up until now. I note that this role is one that LJH herself, and her parents, wish to see continued. In this context it is necessary to note that the parents, despite their involvement with and concern for LJH, are unable to perform the role that a third party such as a guardian can perform.
34 In the circumstances I consider that it is necessary for the guardian to remain in office, and to have plenary powers rather than attempting to limit those powers in any way, even though, if LJH's affairs can stabilise and even improve, there may not be many formal decisions that the guardian will need to make on behalf of LJH.
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Order
35 For the reasons set out above my decision is that the guardianship order made on 26 April 2006 should be confirmed and that this order should be reviewed by 26 April 2011, which would enable this order to be reviewed at the same time as the existing administration order. It is of course possible for the Public Advocate, LJH or any other person with a sufficient interest to apply for an earlier review if circumstances change.
I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M ALLEN, SENIOR MEMBER
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