MGP
[2020] WASAT 65
•12 MAY 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: MGP [2020] WASAT 65
MEMBER: DR E MARILLIER, MEMBER
HEARD: 3 APRIL AND 12 MAY 2020
DELIVERED : 12 MAY 2020
PUBLISHED : 17 JUNE 2020
FILE NO/S: GAA 320 of 2020
MGP
Represented Person
Catchwords:
Mental illness - Mentally impaired accused - Guardianship - Less restrictive alternative - Capacity for medical treatment decisions - Delusional grounds for refusal - Best interests - Involuntary treatment order - Protection of others
Legislation:
Criminal Law (Mentally Impaired Accused Act 1996 (WA), s 9
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 40, s 43, s 43(1)(b), s 43(1)(b)(iii), s 45(1), s 45(3), s 51, s 51(2)(f), s 110ZH, s 110ZI(1), Div 3, Pt 5
Mental Health Act 2014 (WA), s 6, s 7, s 10, s 10(1), s 13, s 15, s 16-20, s 22(1), s 25, s 25(1), s 242
Result:
Public Advocate appointed guardian
Category: B
Representation:
Counsel:
| Represented Person | : | Mental Health Law Centre |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
DON [2005] WASAT 193
GC and PC [2014] WASAT 10
KS and DC [2014] WASAT 90
LGW [2004] WAGAB 4
MC [2004] WAGAB 5
MM [2001] 28 SR (WA)
Ms G [2017] WASAT 108
NCK [2004] WAGAB 6
RW [2014] WASAT 120
XYZ (Guardianship) [2007] VCAT 1196
REASONS FOR DECISION OF THE TRIBUNAL:
Background
MGP is a 55-year-old woman currently on remand in Bandyup Prison awaiting trial on serious charges.
MGP has a long history of paranoid schizophrenia and complex medical comorbidities including ischaemic heart disease, kidney and liver disease. Her criminal history dates back to 1981.
In late January 2020, an application for appointment of a guardian was made to the Tribunal by the treating team at the State Forensic Mental Health Service (SFMHS). The application was precipitated by the revocation of an inpatient treatment order under the Mental Health Act 2014 (WA) (MH Act) by the Mental Health Tribunal (MHT).
MGP is well known to the SFMHS following multiple admissions since 2007. These admissions were due to deterioration of her schizophrenia leading to violent offending in response to auditory hallucinations and delusions. She has been in custody since April 2017 awaiting trial on serious charges.
MGP has been admitted to the SFMHS on four occasions since then, for several months each time. During these admissions, the challenging balance between optimising control of schizophrenia without precipitating deterioration in her cardiac, renal and hepatic function was noted. This was exacerbated by MGP declining physical, ECG and blood tests on all but one occasion, and at times also refusing depot medication for her schizophrenia. MGP's last admission from October 2019 lasted until the decision of the MHT in January 2020 to revoke her inpatient treatment order. The Tribunal was informed by MGP's treating team and her legal representative that the revocation was on the basis that MGP advised the MHT that she would engage with the mental health team at Bandyup Prison and comply with her depot medication. Of note, however, MGP continued to refuse all interventions to monitor her physical state, and to take medications to manage her physical health problems.
The SFMHS's concern regarding the inability to optimise treatment of MGP's schizophrenia (and therefore to maximise her ability to be fit to stand trial, and minimise her risk to herself and others) due to her refusal to engage in monitoring and treatment of her serious heart, liver and kidney disease precipitated the application to the Tribunal for appointment of a guardian under s 40 of the Guardianshipand Administration Act 1990 (WA) (GA Act).
The hearing of the application for a guardianship order commenced on 3 April 2020 (first hearing). MGP, her legal representative from the Mental Health Law Centre FL, the social worker SA, psychiatrist Dr G and psychiatric registrar Dr P from the SFMHS and EG, a representative from the Office of the Public Advocate all attended.
The first hearing was adjourned to 12 May 2020 (second hearing) to allow exploration of the effectiveness of a less restrictive alternative to a guardianship order. MGP represented that she would organise to have blood tests performed and outpatient review of her medical conditions to demonstrate that a guardianship order was not necessary to achieve this purpose. Unfortunately, although MGP did organise to have blood tests during the adjournment, she still did not take the medication recommended for her heart disease, and the day prior to the second hearing she suffered a stroke, requiring hospitalisation. On the advice of the treating medical team that MGP had recovered from any deficits from the stroke, and that she was to be discharged to Bandyup Prison the following day, the Tribunal conducted the hearing as planned. MGP attended by video-conference from hospital having been given the opportunity to instruct her representative from the Mental Health Law Centre prior to commencement of the second hearing. Neither MGP nor her representative objected to the hearing proceeding.
The relevant legislation
Although the application to the Tribunal is brought under the GA Act, the context of MGP's current circumstances requires consideration of three intersecting pieces of legislation: the GA Act, the MH Act and the Criminal Law (Mentally Impaired Accused) Act1996 (WA) (MIA Act). Each of these Acts has current application to MGP and each has provisions that are relevant to the determination of:
(1)MGP's capacity for reasonable judgment;
(2)what is in MGP's best interests; and
(3)how to balance the appropriate protection of MGP and others while being least restrictive of her freedom of decision and action.
The Guardianship and Administration Act 1990 (WA)
In coming to its findings and determinations, the Tribunal must observe the principles set out in s 4 of the GA Act:
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(3)Every person shall be presumed to be capable of -
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)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.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(6)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(7)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.
Section 43 of the GA Act is also relevant here:
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40-
(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 the protection of others;
and
(c)is in need of a guardian,
the Tribunal may by order declare the person to be in need of a guardian and if it does so shall appoint-
(d)a person to be a plenary Guardian or a limited guardian and, if it is expedient, a person to be an alternative guardian; or
(e)persons to be joint plenary guardians or joint limited guardians,
as the case may require, of the person in respect of whom the application is made.
(2)Where under subsection (1) the State Administrative Tribunal declares that a person is in need of a guardian, it shall also declare the matter or matters set out in paragraph (b) of that subsection of which it is satisfied[.]
(Emphasis added)
Section 3 of the GA Act defines a mental disability as including 'an intellectual disability, a psychiatric condition, an acquired brain injury and dementia'.
The Mental Health Act 2014 (WA)
The MH Act relevantly states in s 6:
(1)A person has a mental illness if the person has a condition that -
(a)is characterised by a disturbance of thought, mood, volition, perception, orientation or memory; and
(b)significantly impairs (temporarily or permanently) the person's judgment or behaviour.
(2)A person does not have a mental illness merely because one or more of these things apply -
…
(c)the person is, or is not, a member of a particular religious, cultural or racial group;
…
(g)the person engages in indecent, immoral or illegal conduct;
…
(i)the person uses alcohol or other drugs;
(j)the person is involved in, or has been involved in, personal or professional conflict;
(k)the person engages in anti-social behaviour;
(l)the person has at any time been -
(i)provided with treatment; or
(ii)admitted by or detained at a hospital for the purpose of providing the person with treatment.
…
(4)A decision whether or not a person has a mental illness must be made in accordance with internationally accepted standards prescribed by the regulations for this subsection.
Section 7 of the MH Act relevantly addresses the question of interests:
(1)This section applies whenever a person or body is required under this Act to decide what is or is not in the best interests of a person.
(2)The person or body making the decision must have regard to these things -
(a)the person's wishes, to the extent that is practicable to ascertain those wishes;
(b)the views of each of these people -
(i)if the person has an enduring guardian or guardian - the enduring guardian or guardian;
(ii)if the person is a child - the child's parent or guardian;
(iii)if the person has a nominated person - the nominated person;
(iv)if the person has a carer - the carer;
(v)if the person has a close family member - the close family member;
(c)any other matter that the person or body considers relevant to making the decision.
Section 10 of the MH Act is also relevant:
(1)The objects of this Act are as follows -
(a)to ensure people who have a mental illness are provided the best possible treatment and care -
(i)with the least possible restriction of their freedom; and
(ii)with the least possible interference with their rights; and
(iii)with respect for their dignity;
(b)to recognise the role of carers and families in the treatment, care and support of people who have a mental illness;
(c)to recognise and facilitate the involvement of people who have a mental illness the nominated persons and their carers and families in the consideration of the options that are available for their treatment and care;
(d)to help minimise the effect of mental illness on family life;
(e)to ensure the protection of people who have or may have a mental illness;
(f)to ensure the protection of the community.
(2)A person or body performing a function under this Act must have regard to those objects.
(Emphasis added)
Sections 13 and 15 of the MH Act discuss decision making capacity generally:
13.Capacity of adult to make decisions
(1)For the purposes of this Act, an adult is presumed to have the capacity to make a decision about a matter relating to himself or herself unless the adult is shown not to have that capacity.
(2)For the purposes of this Act, if an adult does not have the capacity to make decisions about the matter relating to himself or herself, the person who is authorised by law to do so may make the decision on the adult's behalf.
(Emphasis added)
15.Determining capacity to make decisions
(1)For the purposes of this Act, a person has the capacity to make a decision about the matter relating to himself or herself if another person who is performing a function under this Act that requires that other person to determine that capacity is satisfied that the person has the capacity to -
(a)understand any information or advice about the decision that is required under this act to be provided to the person; and
(b)understand the matters involved in the decision; and
(c)understand the effect of the decision; and
(d)weigh up the factors referred to in paragraphs (a), (b) and (c) for the purpose of making the decision; and
(e)communicate the decision in some way.
(2)For the purposes of this Act, a decision made by person about the matter relating to himself or herself must be made freely and voluntarily.
(Emphasis added)
Sections 16 to 20 of the MH Act then apply these principles to the giving of informed consent to treatment. The MH Act defines treatment as:
the provision of a psychiatric, medical, psychological or psychosocial intervention intended (whether alone or in combination with one or more other therapeutic interventions) to alleviate or prevent the deterioration of a mental illness or a condition that is a consequence of a mental illness, and does not include bodily restraint, seclusion or sterilisation[.]
(Emphasis added)
In summary, the MH Act provides that informed consent can be given by the patient or an authorised substitute decision-maker (including a guardian appointed by the Tribunal) where the patient lacks capacity to make a treatment decision about the provision of the treatment to himself or herself. A clear explanation of the proposed treatment must be given to the person being asked to make the treatment decision, including a warning of any risks inherent in the treatment and any alternatives, and sufficient time must be given to consider the decision and reasonable opportunity to obtain any other advice in relation to the decision that the person wishes.
Section 22(1) of the MH Act states:
(1)An inpatient treatment order is an order in force under this Act under which a person can be admitted by a hospital, and detained there, to enable the person to be provided with treatment without informed consent being given to the provision of the treatment.
Section 25(1) of the MH Act gives the following criteria for the making of an involuntary treatment order (noting this includes both inpatient treatment orders and community treatment orders, and the former has been utilised when MGP has required admission to the Frankland Centre):
(1)A person is in need of inpatient treatment order only if all of these criteria are satisfied -
(a)that the person has a mental illness for which the person is in need of treatment;
(b)that, because of the mental illness, there is -
(i)a significant risk to the health or safety of the person or to the safety of another person; or
(ii)a significant risk of serious harm to the person or to another person;
(c)that the person does not demonstrate the capacity required by section 18 to make a treatment decision about the provision of the treatment to himself or herself;
(d)that treatment in the community cannot reasonably be provided to the person;
(e)that the person cannot be adequately provided with treatment in a way that would involve less restriction on the person's freedom of choice and movement than the making an inpatient treatment order.
(Emphasis added)
The Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Section 9 of the MIA Act sets out the definition of mental fitness to stand trial:
An accused is not mentally fit to stand trial for an offence if the accused, because of mental impairment, is -
(a)unable to understand the nature of the charge; or
(b)unable to understand the requirement to plead to the charge or the effect of a plea; or
(c)unable to understand the purpose of a trial; or
(d)unable to understand or exercise the right to challenge jurors; or
(e)unable to follow the course of the trial; or
(f)unable to understand the substantial effective evidence presented by the prosecution in the trial; or
(g)unable to properly defend the charge.
The MIA Act defines mental impairment as 'intellectual disability, mental illness, brain damage or senility'. Mental illness is defined in the MIA Act as 'an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary'.
The issues to be determined by the Tribunal
In all hearings regarding an application for the appointment of a guardian under the GA Act, the Tribunal must determine answers to the following questions:
(1)Has the presumption of capacity been rebutted on the balance of the evidence before the Tribunal?
(2)If so, is there a need for orders to allow the proposed represented person's health and safety and that of others to be protected, or is there a less restrictive option that would achieve this outcome?
(3)If there is a need for orders, then who should be appointed, what functions do they need to fulfil, and what term should the orders be made for prior to review by the Tribunal?
The question of MGP's capacity
In this case MGP's capacity in regard to her ability to make reasonable judgments about the treatment and monitoring of her chronic medical comorbidities and chronic paranoid schizophrenia is questioned by the SFMHS treating team.
The material before the Tribunal regarding capacity came from the reports of the treating team at the Frankland Centre, a written submission on MGP's behalf from the Mental Health Law Centre, and oral submissions at the first hearing from MGP, her legal representative, and the treating team at the Frankland Centre. In addition, the treating team had provided copies of discharge summaries from Graylands Hospital, Armadale-Kelmscott Memorial Hospital, Bentley Hospital, Joondalup Health Campus, and Royal Perth Hospital.
The discharge summaries provided clear evidence in support of the diagnosis of ischaemic heart disease with myocardial infarction in July 2017 treated at Royal Perth Hospital with coronary angiography and stenting. In October 2018 MGP was admitted with a second myocardial infarction and repeat angiogram which showed that the stents were still patent and recommended ongoing medical therapy with multiple oral medications. On both these occasions and at an outpatient review at Royal Perth Hospital in June 2019 the presence of renal dysfunction caused by congenital polycystic kidney disease which had been diagnosed in 2010 was noted. The outpatient notes document that MGP discussed with the doctors that she had stage II chronic kidney disease and that introduction of a new medication (tolvaptan) was to be considered on her release from prison. It was noted that commencing this medication would require regular outpatient followup and blood tests. Deranged liver function tests were also noted in the Royal Perth Hospital discharge summaries and outpatient notes, in results from the Frankland Centre in 2018 and 2015, and at Bentley Hospital in 2008, with deterioration in both renal and hepatic function over that time.
Dr G and Dr P provided a copy of the report they had made to the MHT on 20 January 2020 explaining why the question of MGP's capacity to consent to monitoring of her medical conditions was inextricably linked to the optimal management of her schizophrenia. In part the report stated:
[MGP] has a psychotic illness characterised by irritability, paranoia, self neglect[,] delusional beliefs about her health and a heightened risk to others. Her care is complicated by her serious chronic physical health problems. She has polycystic kidneys and liver with impaired liver and renal function. She also has cardiovascular disease and had a previous myocardial infarct. She faces very serious charges.
Previously when she has had a relapse of her psychotic illness, treatment with antipsychotic medication led to a fairly rapid improvement when she started caring for herself, started engaging with others, was no longer irritable and regained her capacity to make treatment decisions.
The concerns currently are that despite treatment under the MHA with haloperidol depot injection [MGP's] mental state has not improved. She is also refusing all interventions to monitor her physical state and all medications to manage her physical health problems. This not only puts her at serious risk of deterioration of her physical health and possibly death but also makes it difficult to safely increase or change her psychiatric medication because of the risks of any medication changes compromising her physical health.
[MGP's] refusal of physical investigations and treatment appear to be on delusional grounds. She states for example it is a lie that she ever had a myocardial infarction and that the haloperidol depot has cured her liver.
The submission by FL on behalf of MGP acknowledged the diagnoses of paranoid schizophrenia, kidney, liver and heart disease. It stated that MGP disputed all of these diagnoses. The submission noted that no formal assessment of MGP's cognitive capacity had been provided. It submitted that the revocation by the MHT of the involuntary treatment order indicated MGP had a right to refuse to consent to medical treatment for her mental illness. It also noted that a consultant forensic psychiatrist had assessed MGP as being fit to plead and stand trial as per the criteria in the MIA Act. The Tribunal notes that the tests of capacity in the MIA Act are narrow and specific to the legal setting, and do not address whether MGP has capacity to make reasonable judgments in regard to her health care.
At the first hearing, the Tribunal sought further information from the parties regarding the grounds on which the MHT had revoked the inpatient treatment order under which MGP had been being treated since October 2019. MGP, her legal representative and the treating team stated that the MHT believed that a less restrictive alternative for the treatment of MGP's schizophrenia existed on the basis that MGP undertook to be compliant with her depot medication and to engage with the mental health team at Bandyup Prison. MGP noted that one of the doctors on the panel had been her treating psychiatrist in 2014. FL stated that MGP was found to be a voluntary patient with the capacity to refuse treatment.
When MGP was asked what she understood about her heart, liver and kidney disease, MGP stated that she accepted that she had polycystic kidneys and liver, but that because she had no symptoms, she did not need blood tests or treatment ('All is good, like I'm 21 again'; ts 7, 3 April 2020). When asked about her diagnosis of ischaemic heart disease, MGP stated that she did not believe that she had stents because she had no scar on her chest ('There's no scars on my body, I wasn't taken to an operation room and I recall my time in hospital'; ts 8, 3 April 2020). The Tribunal explained that stenting is performed via a small puncture of a blood vessel at the wrist or in the groin, in an angiography suite, often under local anaesthetic or mild sedation only. When asked what the doctors had advised her regarding the consequences of not taking medication for her heart, MGP stated she had been warned that there was a risk of heart attack and death. However, MGP maintained that she did not have a heart condition.
It was explained to MGP that the copies of the Royal Perth Hospital discharge summaries clearly stated the diagnoses of myocardial infarction and ischaemic heart disease, and that stents had been performed at angiography. MGP became guarded and evasive when asked if she could explain why she thought the doctors would have written that on the discharge summaries if it was not true. She asked her legal representative if she had to answer the Tribunal's question. MGP was advised that she did not have to answer, and she declined to do so.
FL informed the Tribunal that the week prior to the hearing when she discussed matters with MGP she believed that MGP had told her she was not compliant with her depot medication for schizophrenia. At the hearing however, MGP stated that she was having her depot every month on the 23rd day of the month. However, MGP stated 'I have refused all medical since I have come back from Frankland'; ts 10, 3 April 2020.
Dr G, consultant psychiatrist at the Frankland Centre (SFMHS), explained that the reason that monitoring heart, kidney and liver function with electrocardiogram, echocardiogram and blood tests was important for optimisation of MGP's mental illness (paranoid schizophrenia), was that without those tests, the team were unable to increase or change the type of antipsychotic medication without significant risk of precipitating potentially life threatening deterioration of MGP's significant medical comorbidities.
In the context of a diagnosis of a mental illness, in this case chronic paranoid schizophrenia, formal cognitive assessment such as a mini mental state examination which might be used to assess dementia or acquired brain injury is not a useful test for the assessment of capacity. In mental illness, the issue of capacity relates to the ability to make reasonable judgments in regard to specific issues and whether this is impaired due to the mental illness. In RW [2014] WASAT 120 (RW), Member Mansveld adopted the reasoning in GC and PC [2014] WASAT 10, where the full Tribunal said, at [36]:
… The statutory presumption of capacity is a fundamental principle in the GA Act and serves to protect persons who are the subject of proceedings under the GA Act from having their decision-making capacity removed from them and a substitute decision-maker appointed for them under the act. Because of the significant consequences for an individual of having their decision-making capacity removed from them and a substitute decision-maker appointed for them under the GA Act, clear and cogent evidence is required to rebut the statutory presumption of capacity.
In RW, Member Mansveld went on to find, however, that orders could and needed to be made because, as stated at [99]:
… I do, however, accept, on the evidence, that RW is in need of oversight and care in the interests of his own health and safety (s43(1)(b) (iii) of the GA Act). Any relapse of his [mental illness] is no doubt an insidious event that requires monitoring of RW's medication and his behaviours and, importantly, the authority to consult with mental health and other professionals in an ongoing way.
The Tribunal notes that in RW, the guardian appointed for RW was his spouse, leading Member Mansveld to state at [106]:
I should add in respect to decisions about RW's medical treatment that Pt 9C of the GA Act will apply if the situation arises that RW is found not to be able to make reasonable judgments in respect of a particular treatment. If this occurs, then CW will be lawfully entitled, as RW's spouse and the person responsible, to make the treatment decision for him without the need to be appointed guardian.
This is not the case for MGP, as unfortunately although she has children and the treating team have sought to involve them in MGP's care, they have not been able to act as substitute decision-makers for her. Should the Tribunal find that a substitute decision-maker is required for MGP in respect to medical treatment decisions then a guardian would need to be appointed.
The Tribunal notes that in MGP's case, the question of whether a guardian is required 'for the protection of others' (s 43(1)(b)(iii) of the GA Act) is also relevant, given her history of violent offending while affected by psychotic phenomena.
In XYZ (Guardianship) [2007] VCAT 1196 (XYZ), Billings J discusses at [63]:
… [T]he example of the person who is able to decide with whom he shall live and yet [may] be unable to consent to medical treatment. And there is another who might be capable of understanding the ramifications of minor medical treatment and so of consenting to it but be incapable of consenting to a major procedure. … the discussion acknowledges that capacity may be lacking or impaired in relation to only one or a small number of decisions or categories of decision[.]
Billings J continues at [66]-[69] of XYZ:
66.'… [T]he most appropriate way to assess how someone functions in the real world after an injury is to move in with them for a month and watch how they cope in their daily lives; but how many clinicians have the time, patience or interest to undertake such an assessment?' [quoting from: Crowe, The parallel universe: Does neuropsychological assessment tell us anything about the real world? InPsych highlights, June 2005 ( MMSE was not developed to assess capacity, although it has often been used to document 'general cognitive' abilities as part of capacity assessment in clinical and other contexts ... The use of the MMSE for capacity assessments is the subject of ongoing debate'. Mental Capacity Powers of attorney and Advance Health Directives, at pp. 116 ff.
69.The general need for caution in capacity assessments is expressed by Darzins et. al. in this way:
'If capacity assessments place too much weight on cognitive function tests, like the [MMSE] or the cognitive capacity test, poor performance on these tests may be interpreted as evidence of incapacity. These tests are primarily language based and influenced by education, culture and language. If tests of cognition are used to determine capacity, some people who are capable, but who score poorly on these tests because of ignorance, lack of education or language difficulties, will be inappropriately labelled as incapable. Conversely, incapable people who have received more education and have well developed language skills, may erroneously be judged capable by these tests'. Who can decide? The six step capacity assessment process. Darzins et. al., cited above, at p. 8.
The Tribunal notes that in effect, because of MGP's incarceration and multiple, long-term admissions to the SFMHS, her capacity for reasonable judgment in respect to treatment and monitoring of both her psychiatric and medical conditions has been subject to prolonged close observation by the treating team for many months since April 2017 in respect of the specific decisions that are the subject of this application. The fluctuating nature of her capacity is related to her mental illness (psychiatric condition) of chronic paranoid schizophrenia which meets the definition of a mental disability for the purposes of the GA Act.
The Tribunal is satisfied that MGP has demonstrated a lack of capacity to make reasonable judgments in respect of medical treatment which is defined in s 3 of the GA Act as including 'medical or surgical treatment, … dental treatment; or other healthcare'. This has been manifest on occasions by declining antipsychotic treatment for her schizophrenia (on occasion leading to serious harm to others and her own incarceration) which can be managed to some extent within the provisions of the MH Act which allows for involuntary treatment for mental illness (s 25 of the MH Act).
On multiple other occasions, as detailed in the discharge summaries from the SFMHS, MGP's incapacity to make reasonable judgments with respect to management of her medical comorbidities (heart, liver and kidney disease) has been protracted and appears on the written evidence and the oral submission from MGP herself to be based on delusional beliefs (that the doctors at Royal Perth Hospital have lied regarding her ischaemic heart disease diagnosis, that her liver disease has been cured by haloperidol depot injections (haloperidol is an antipsychotic medication)).
For these reasons, the Tribunal is satisfied of the following in regard to s 43(1)(b) of the GA Act.
That MGP is:
(a)unable to make reasonable judgments in respect of matters relating to her person (s 43(1)(b)(ii));
(b)in need of oversight, care or control in the interests of her own health and safety and for the protection of others (s 43(1)(b)(iii); and
(c)is in need of a guardian.
The need for orders
In LGW [2004] WAGAB 4, (LGW) the Guardianship and Administration Board discussed the issues of guardianship where a person is in custody including at [4]-[7] of the summary:
4.In order for the Board to make a guardianship order, it must be demonstrated that there is a need for someone to be vested with the legal status of guardian to act on behalf of the represented person. The Board's determination in a particular case as to whether a person is "in need of a guardian" is therefore a question which must be decided on the facts of that case.
5.Need is most clearly demonstrated where there is a decision which requires a substitute decision-maker with legal authority to make the decision on behalf of the person. However, in an appropriate case the need for a legal guardian may involve other functions within the compass of parental responsibility. The concept of need in s 43(1)(c) is not restricted to the need to make an "authoritative decision".
6.Where the person is subject to the custody or control of another body or legislative regime, it will be more difficult for the Board to be satisfied that there is a need for the Board to intervene to appoint a guardian. For example, in many cases effective advocacy on behalf of a person can and will occur without the need for the legal authority of formal guardianship. In other cases, a board may be persuaded on the facts that the standing that attaches to a legally appointed guardian is needed and is in the best interest of the represented person.
7.The Board must be satisfied that a role exists for a legally appointed guardian, that the appointment of a legal guardian is necessary and that "the needs of the person could [not] be met by other means less restrictive of the person's freedom of decision and action".
In NCK [2004] WAGAB 6, the Board discussed the utility of orders at [59]:
In this regard, the question of how useful or practical the order of the Board may be in such circumstances - and thus whether the Board should make the order - should not be confused with the question whether the Board has jurisdiction to entertain the application.
And at [64]:
It follows that whether a person is in need of a guardian is the ultimate touchstone in relation to which the Board must decide that the order should be made. The concept of need is not to be determined by reference to whether particular "authoritative" decisions are required on behalf of a person, but whether there is, or may be, a need for a guardian to intervene, in a more generalised sense, in the affairs of that person[.]
FL, on behalf of MGP, in her written submission to the Tribunal argued that there was no need for a guardianship order for the following reasons:
(a)that the MH Act had coercive powers which would enable MGP to be provided with treatment without informed consent;
(b)that an involuntary treatment order made under the MH Act would impose a level of control over MGP's treatment decisions that was more restrictive than a guardianship order;
(c)that although a guardian may be given the authority to make treatment decisions for represented person, the authority does not include coercive powers that override a person's right to refuse to consent to medical treatment for a diagnosed illness;
(d)that MGP has the right to refuse to consent to treatment for her diagnosed mental illness;
(e)that MGP has been refusing medical treatment for some months, against the advice of the medical practitioner at Bandyup Prison, the general practitioner at the Frankland Centre and medical practitioners at St John of God Hospital and Royal Perth Hospital; and
(f)that should a guardian be appointed for MGP, it is unlikely that she will follow the direction of her guardian in relation to treatment decisions.
In regard to points (c) and (d) of the submission on behalf of MGP listed above, the Tribunal notes that the power of a guardian to consent does in fact override an incompetent refusal. The treating team can accept the guardian's consent to a form of treatment as a lawful one.
The Tribunal notes that in relation to MGP, although the use of the MH Act has allowed transfer of MGP to the Frankland Centre when her schizophrenia has deteriorated to the point where an Involuntary Treatment Order can be utilised, it has not allowed optimal management of her schizophrenia to 'prevent the deterioration of a mental illness or a condition that is a consequence of a mental illness' (which is included in the definition of 'treatment' in the MH Act).
In addition, as the submission mentions, the Tribunal accepts that in the circumstances of this case a limited guardianship order for medical treatment decisions would be less restrictive than the utilisation of the MH Act, as well as having the required breadth to cover monitoring and treatment of MGP's medical comorbidities, which is needed to allow optimal treatment of her schizophrenia. Optimal treatment of schizophrenia will be in MGP's best interests as well as being consistent with the protection of the community as in s 43(1)(b)(iii) of the GA Act:
… that a person in respect of whom an application for a guardianship order is made under section 40 -
…
(b)is -
…
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others[.]
In regard to FL's submission on behalf of MGP that the authority of a guardian does not include coercive powers that override a person's right to refuse to consent to medical treatment for a diagnosed illness, the Tribunal notes that s 45(1) of the GA Act states:
(1)Subject to section 43(3), where a person is appointed as a plenary guardian, or 2 or more persons are appointed as joint plenary guardians, he or they have all of the functions in respect of the person of the represented person that are, under the Family Court Act 1997, vested in a person in whose favour has been made -
(a)a parenting order which allocates parental responsibility for a child; and
(b)a parenting order which provides that a person is to share parental responsibility for a child,
as if the represented person were a child lacking in mature understanding, but a plenary guardian does not, and joint plenary guardians do not, have the right to chastise or punish a represented person.
(2)Without limiting subsection (1), a plenary guardian may do any of the following -
(a)decide where the represented person is to live, whether permanently or temporarily;
(b)decide with whom the represented person is to live;
(c)decide whether the represented person should work and, if so, the nature or type of work, for whom he is to work and matters related thereto;
(d)subject to subsection (4A), make treatment decisions for the represented person;
(e)decide what education and training the represented person is to receive;
(f)decide with whom the represented person is to associate;
(g)as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person;
(h)as the guardian ad litem of the represented person, defend or settle any legal proceedings taken against the represented person, except proceedings relating to the estate of the represented person;
(i)if the plenary guardian is a research decision-maker for the represented person — subject to subsection (4A)(a) and sections 110ZR and 110ZT, make research decisions in relation to the represented person.
(3)A plenary guardian cannot do any of the following on behalf of the represented person -
(a)vote in any election;
[(b)deleted]
(c)consent, under section 17 of the Adoption Act 1994, to the adoption of a child or under section 69(1)(a)(ii) of that Act to the adoption of a represented person;
(da)consent, under section 21(2)(d) of the Surrogacy Act 2008, to the making of a parentage order under that Act; or
(d)under the Marriage Act 1961 of the Commonwealth, give consent in relation to the marriage of a minor, sign a notice of intended marriage or take part in the solemnization of a marriage.
Importantly, in LGW at [32] the Guardianship and Administration Board emphasised in relation to s 45 that:
… subsection (2) begins with the phrase 'without limiting subsection (1)' and what follows must be read as a non-exhaustive list.
FL submits that MGP has been refusing medical treatment for some months against the advice of multiple doctors. This is supported by the reports of the treating team at the Frankland Centre and the discharge summaries from the SFMHS over recent years. In the Tribunal's view this supports the finding that MGP lacks the capacity to make reasonable judgments in respect of this aspect of her health, as the reasons given for refusal appear to be on delusional grounds related to her mental illness.
EG, representing the Office of the Public Advocate, submitted that there was evidence of consistent refusal of medical treatment. She submitted that MGP had been advised of the consequences of not taking her treatment, but EG was unclear whether mental illness was affecting decision-making or if there were other reasons for MGP's refusal. EG advised at the first hearing, that in her opinion, on the evidence, MGP was a person for whom orders could be made, and that MGP would benefit from having a guardian for medical treatment decision-making.
FL's submission on behalf of MGP, citing review of guardianship and administration orders in respect of MM [2001] 28 SR (WA) (MM) at 320-332, argued that there was no need for a guardian because there was no demonstrable 'live issue or foreseeable conflict in relation to the personal affairs of the represented person so as to give rise to the need for SAT to intervene in the life of the represented person by making a formal order'.
With respect, the Tribunal finds that the balance of the evidence suggests that over the last several years, despite the best efforts of her treating team, MGP's mental illness has not been able to be optimally managed, leading to very serious consequences including violent offending and incarceration, and that she faces trial in the next few months, and that this constitutes a significant live issue. In addition, in the submission of her treating team to the MHT, they note that if MGP remains in prison with symptomatic schizophrenia, they had been advised by the Bandyup Prison psychiatrist that MGP would most likely be kept in isolation for up to 23 hours per day.
Additionally, just days prior to the second hearing, MGP suffered a stroke, a vascular event which is made more likely when a person does not take recommended preventative medication (including the medications which had been prescribed for MGP for her ischaemic heart disease, and which she had declined to take). The Tribunal notes that it is relying on the knowledge of the presiding member, a medical practitioner, in this regard. To decrease her risk of recurrent stroke, MGP would be advised to take similar medication. This is also a live issue.
In MGP's case, her history demonstrates the fluctuating, chronic nature of incapacity and need in the setting of mental illness. The Tribunal has in DON [2005] WASAT 193 at [33]-[53], discussed in detail the intersection of the MH Act and the need for appointment of a guardian under the GA Act, citing MM and also MC [2004] WAGAB 5 (MC) at [36]:
We consider that it is plain that the authority of the Chief Psychiatrist under s 110 [the equivalent section to s242 of the current MH Act], whatever its boundaries, is not intended to override the authority of a guardian. We also consider that it is more appropriate for an independent guardian to give consent to medical treatment than for the authority to be exercised by the Chief Psychiatrist. Thus, it is clear in our view that the existence of the authority of the Chief Psychiatrist does not preclude the Board from finding that a person is in need of a guardian within the meaning of s 43(1)(c).
The effect of MGP's incapacity to make reasonable judgments with respect to the ongoing monitoring and management of her medical comorbidities is to decrease the ability of the treating psychiatric team to optimally control her schizophrenia. When MGP's schizophrenia is sub-optimally controlled, MGP is at significant risk of causing harm to herself and others, as demonstrated by her medical, psychiatric and criminal history.
The Tribunal finds that on the balance of the evidence it is satisfied that there is a need for the appointment of a guardian to support optimal treatment of MGP's schizophrenia both in her own best interests and for the protection of others, and that this requires ongoing monitoring and management of her medical comorbidities.
Are there any less restrictive options that would meet MGP's needs?
The Tribunal has considered whether the MH Act provides a less restrictive alternative to the making of a guardianship order to provide a substitute decision-maker when MGP lacks the capacity to make reasonable judgments in regard of her psychiatric and medical treatment due to relapse of her mental illness. In LGW, the Guardianship and Administration Board considered whether the provisions under which the chief psychiatrist can approve medical treatment other than psychiatric treatment for a mentally impaired defendant were an alternative to the appointment of a guardian. Under the current MH Act the relevant part is s 242:
(1)This section applies if urgent non-psychiatric treatment is provided to a patient who is -
(a)an involuntary patient who is under an inpatient treatment order authorising the patient's detention at an authorised hospital; or
(b)a mentally impaired accused required under the MIA Act to be detained and authorised hospital.
(2)In this section -
urgent non-psychiatric treatment means urgent treatment as defined in the GAA Act section 110ZH[.]
Section 110ZH of the GA Act defines:
urgent treatment [as] treatment urgently needed by a patient -
(a)to save the patient's life; or
(b)to prevent serious damage to the patient's health; or
(c)to prevent the patient from suffering or continuing to suffer significant pain or distress,
but does not include -
…
(e)the sterilisation of the patient.
Section 110ZI(1) of the GA Act relevantly states:
Subsection (2) applies if -
(a)a patient needs urgent treatment; and
(b)the patient is unable to make reasonable judgments in respect of the treatment; and
(c)it is not practicable for the health professional who proposes to provide the treatment to determine whether or not the patient has made an advanced health directive containing a treatment decision that is inconsistent with providing the treatment; and
(d)it is not practicable for the health professional to obtain a treatment decision in respect of the treatment from the patient's guardian or enduring guardian or the person responsible for the patient under section 110ZD.
In LGW, the Guardianship and Administration Board (at [60]), considered that it was not in the best interests of LGW to rely on the authority of the chief psychiatrist for consent to medical treatment under that section. The MH Act in s 13 and s 17 recognises that a person authorised by law (including a guardian) may make a decision on behalf of an adult who does not have capacity to make a decision about a matter relating to herself.
The Tribunal agrees with the submission of FL on behalf of MGP that the use of involuntary treatment orders under the MH Act is more restrictive than a limited guardianship order for medical treatment decisions. In addition, the evidence over recent years is that despite the more restrictive power under the MH Act, this approach has not been sufficient to meet MGP's need for a substitute decision-maker with regard to medical treatment decisions. For these reasons, the Tribunal finds that the MH Act does not provide a less restrictive alternative that will meet MGP's needs. In addition, the option of not making an order will not serve MGP's best interests as her history over the last several years demonstrates.
MGP's wishes
MGP expressed a strong preference to remain at Bandyup Prison rather than the Frankland Centre, because she felt her social supports were better at Bandyup Prison, in terms of the gender and culture of fellow residents. She believes she has an excellent knowledge of the relevant medical issues, on the basis that she had worked as a medical secretary for some years (this is listed in her work history by the treating team) and understands the principles of macrobiotic eating. She stated that she refused the recommended monitoring and treatment for her medical conditions because she had no symptoms. At the second hearing, MGP was not able to provide relevant responses to the Tribunal's questions in regard to what actions she had taken in respect to her medical treatment and tests (that information was provided by FL and Dr P), instead telling the Tribunal about what educational programmes she was enrolled in and actions she had taken in regard to her resume. However she did state at the end of the hearing 'I'm a grown woman who can look after herself'; ts 20, 12 May 2020.
FL in her written and oral submissions on behalf of MGP, sought dismissal of the application for guardianship.
Sudden change in position of MGP during first hearing - exploration of less restrictive alternative
Late in the first hearing, after the complex interdependence of optimisation of her medical and psychiatric conditions was explored and summarised, and the provisions of the GA Act (including the restraint function) were explained, MGP stated that she would just have the tests done. She stated that this would be quite easy, she could organise to have it done at the prison by filling in a purple form.
It was not clear to the Tribunal whether this change in approach was as a result of a new understanding of the medical facts, and represented truly informed consent of a durable nature, or if it was alternatively an expedient decision to secure what might appear to MGP to be a less unattractive outcome than the appointment of a guardian (and therefore could not be seen as a decision that had been made freely and voluntarily, as required by the MH Act at s 15). The Tribunal notes that there are multiple occasions documented in the discharge summaries and medical reports of MGP being provided with information about the psychiatric and medical issues including the engagement of the Specialised Aboriginal Mental Health Service and a traditional healer by the SFMHS, and provision of educational material and a cultural pack by the Royal Perth Hospital Cardiac Rehabilitation team. On the basis of that evidence it did not appear to the Tribunal that MGP's previous refusal to take recommended medication or have her conditions monitored had been on the basis of poor health literacy or a lack of appropriate explanation.
The Tribunal felt that in the circumstances, however, it was appropriate to test the viability and durability of MGP's consent to monitoring and management of her medical conditions for one month, and the matter was adjourned to permit this.
Unfortunately, MGP suffered a stroke the day prior to the second hearing. Although her treating team advised that she had suffered little to no deficit as a result, the Tribunal noted that her oral submissions at the second hearing did not address the questions asked. For example, in response to the request '[Could you] tell me what has happened since the last time I spoke with you in regards to the decisions you have made about your medical conditions and your psychiatric treatment?' MGP replied 'In the meantime I've been putting, typing up, my resume and CV so that it could show that I've had a full life of work, family support around me, a marriage of 28 years'; ts 4, 12 May 2020.
The Tribunal heard evidence from FL that MGP did organise to have blood tests done, and the results were forwarded to the treating team at Bandyup Prison. She was also compliant with her depot medication during the period between the hearings. The Tribunal was informed by Dr P, however, that MGP did not take the medication recommended for her heart disease.
EG submitted that MGP appeared to have questionable capacity to make decisions in her own best interests in regard to her physical wellbeing. She referred to the case of Ms G [2017] WASAT 108 where a limited guardianship order was made of a protective nature in the interests of the proposed represented person's health and well-being.
The Tribunal was satisfied that leaving MGP without the support of a guardian would not adequately provide for her health and safety, and that of others, and that dismissing the application would not be in MGP's best interests.
Decision of the Tribunal
For the reasons given above, the Tribunal is satisfied that MGP is a person for whom orders can be made on the basis that she has a mental disability (in this case chronic schizophrenia) which impairs her ability to make reasonable judgments in respect of matters relating to her person (specifically the need for ongoing medical management and monitoring of both her psychiatric and medical conditions), and is in need of oversight, care and control in the interests of her own health and safety and for the protection of others. As a result of this, the Tribunal is satisfied that MGP is in need of a guardian.
The flexibility of the protection and advocacy for MGP's complex health needs that can be afforded to her by the appointment of a guardian by the Tribunal will assist in giving her the best chance to achieve her wish in the short term of being at Bandyup Prison rather than the Frankland Centre, and of being fit to plead at her trial.
In the longer term, optimisation of control of her schizophrenia, which depends on ongoing maintenance and monitoring of treatment for her medical co-morbidities, gives MGP the best chance of being able to be released into the community. It will also afford protection to others while maximising MGP's freedom of action, given the fluctuating nature of her illness, and the risk of relapse precipitating events which spiral from rejection of appropriate medical care on delusional grounds to psychotic phenomena leading to violent offending. Without the protection and advocacy of a guardian, there is ongoing higher risk that MGP will face life-long incarceration in either the correctional system or the Frankland Centre, and also of suffering recurrence or deterioration of her serious medical conditions.
The MH Act does not provide a less restrictive alternative to the making of a limited guardianship order for medical treatment decisions. The evidence before the Tribunal shows a pattern of relapse of sufficient concern that the Tribunal is satisfied that it is in MGP's best interests that she be afforded the support of a guardian.
Section 51 of the GA Act makes it clear that a guardian is required to exercise their functions flexibly, with the represented person's best interests always at the heart of the decision, particularly s 51(2)(f):
in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person[.]
This allows a guardian to be more or less directive in his or her decisionmaking and advocacy as required by the current circumstances including how much MGP is affected by her illness at the time in regard to the specific decision. This flexibility in the approach of the guardian to the particular individual circumstances of the represented person is addressed in RW, LGW, MC and in KS and DC [2014] WASAT 90.
In the absence of any private individual coming forward as an alternative for consideration, the Public Advocate is appointed as guardian for MGP. The Tribunal is satisfied that the following functions are required:
(1)to make treatment decisions on behalf of the represented person, subject to Div 3 of Pt 5 of the GA Act, and
(2)to be able to consent to restraint being used to give effect to a decision of the guardian in the interests of the represented person's health and safety, on the following basis:
(i)a restraint management plan setting out the purpose and circumstances under which restraint is to be used. The plan must be approved by a medical practitioner, and be regularly reviewed; and
(ii)a decision to use restraints should be made only after all reasonable available less restrictive alternatives have been considered and found not to be successful.
The term of the appointment is for 12 months, given that MGP's circumstances in regard to her trial may lead to significant changes in the functions that may be needed by her guardian to support her best interests.
Orders
The order made on 12 May 2020 was as follows:
The Tribunal declares that the represented person, MGP is:
(a)unable to make reasonable judgments in respect of matters relating to her person;
(b)in need of oversight, care or control in the interests of her own health and safety or for the protection of others; and
(c)in need of a guardian.
The Tribunal orders:
Guardianship
1.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)To make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA); and
(b)To consent to the use of restraint, to give effect to a decision of the guardian and in the interests of the represented person's health and safety on the following basis:
(i)a restraint management plan setting out the purpose and circumstances under which restraint is to be used. The plan must be approved by a medical practitioner and be regularly reviewed; and
(ii)a decision to use restraints should be made only after all reasonably available less restrictive alternatives have been considered and found not to be successful.
2.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.
3.The guardianship order is to be reviewed by 11 May 2021.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillie, MEMBER
17 JUNE 2020