MH and HH - [2013] WASAT 59

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: MH and HH [2013] WASAT 59

MEMBER: JUSTICE J A CHANEY (PRESIDENT)
MS S GILLETT (MEMBER)
MR D AITKEN (MEMBER)

HEARD: 2 APRIL 2013

DELIVERED : 15 MAY 2013

FILE NO/S: GAA 536 of 2013

BETWEEN: MH
Applicant
AND
HH
Represented person

Catchwords:

Guardianship and administration - Review of orders - Capacity - Need for guardian - Lack of insight of existing guardian - Risk to represented person if psychiatric treatment not carefully monitored - Turns on own facts

Legislation:

Guardianship and Administration Act 1990 (WA), s 17A, s 44(2)(a), s 44(2)(b), s 44(2)(d), s 68(3)(a)

Result:

Guardianship order revoked and Public Advocate substituted as guardian
Appointment of Public Trustee confirmed

Summary of Tribunal's decision:

The applicant sought discharge of orders appointing himself as guardian and the Public Trustee as administrator in relation to his son. He contended that the orders were no longer necessary. The Tribunal treated the application as a review under s 17A of the Guardianship and Administration Act 1990 (WA).
In light of the application, an investigator from the Office of the Public Advocate prepared a report which suggested that the existing guardianship order may not be operating in the best interests of the represented person, that there remained a need for the appointment of a guardian, and that consideration may need to be given to the appointment of the Public Advocate as guardian.
The Tribunal considered that the applicant's lack of insight into the complexities of the represented person's psychiatric treatment, and his poor relationship with the represented person's treating team, rendered him unsuitable for continued appointment as guardian, at least in the short term. The Tribunal concluded that there remained a need for appointment of a guardian and that, it was in the represented person's best interests for the Public Advocate to be appointed as guardian, with a review in six months' time.
The appointment of the Public Trustee as administrator was affirmed, although the time for review of that order was shortened to coincide with the earlier review of the guardianship order.

Category: B

Representation:

Counsel:

Applicant: Self represented
Represented person : Self represented

Solicitors:

Applicant: N/A
Represented person : N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 22 January 2013, following a review of previous guardianship and administration orders, further orders were made appointing the Public Trustee as plenary administrator of the estate of HH, and reappointing HH's father, MH, as plenary guardian. The guardianship order was to be reviewed by 22 July 2013. An order was also made directing the Public Advocate to attend the next hearing in relation to HH, and to investigate and provide a written report to the Tribunal as to whether the guardianship order appointing MH was operating in the best interests of HH, and any other matter that the Public Advocate considered relevant in respect to the health and welfare of HH.
On 5 February 2013, the Tribunal received a letter from MH asserting that there was no need for the appointment of 'an attorney'. That was accompanied by a document signed by HH saying that he did not need a 'letter of guardianship and administration' and requesting its cancellation. Those letters were treated by the Tribunal as an application for review of the orders made on 22 January 2013 pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act).
At the hearing of that application, MH, supported by HH, submitted that HH was capable of managing his own care and health, and his financial affairs, if necessary with the assistance of MH, and thus there was no longer any need for orders to be in place in relation to guardianship or administration. The issues for determination by the Tribunal concern whether or not that submission should be upheld. As discussed more fully below, in considering that issue, the primary concern of the Tribunal is to determine what is in the best interests of HH.

Background

HH is now 20 years old. He moved to Australia in 2001 from Afghanistan with his father. His mother and siblings are apparently still in either Afghanistan or Pakistan. Since arriving in Australia, HH has lived with his father, MH, apart from some periods in hospitals due to HH's psychiatric illness. HH suffers from paranoid schizophrenia, and has been diagnosed as having an intellectual disability and diabetes.
Some time ago, apparently around 2006, HH was the victim of sexual offences by a third party. He subsequently applied for and was granted criminal injuries compensation. The sum paid, in excess of $40,000 is currently controlled by the Public Trustee in its capacity as HH's administrator.
In 2011, HH was admitted to a mental health unit following an apparently severe psychotic episode. Prompted by staff at that unit, MH made an application in March 2011 to be appointed guardian and administrator for HH. At that time, the criminal injuries compensation claim was still in progress.
On 18 April 2011, MH was appointed plenary guardian and plenary administrator for HH. Those orders were to be reviewed by 18 April 2016.
Following his discharge from hospital, HH came under the care of a psychiatric outpatients clinic (clinic). Staff at the clinic became concerned, in October 2012, as to whether or not HH's basic needs were being met under the existing orders for guardianship and administration. A report from the clinic noted that HH attends the clinic for monthly blood tests and medical observations relating to his psychiatric medication, Clozapine. It also reported that HH attends a sheltered workshop three days per week for which he is paid a small sum of money. It was reported that in April 2012, a social worker at the clinic referred MH to the Public Trustee as MH was having difficulty filling out the annual accounts form for the administration of HH's finances. The Public Trustee had apparently expressed concerns that MH was not well placed to look after HH's finances given his difficulty in filling out the required forms.
The report then listed a number of specific concerns as to HH's welfare. Those concerns included problems with personal hygiene, social skills, diet, and the adequacy of food being provided by MH, a concern as to MH's understanding of HH's mental illness and intellectual disability, and concern as to the overbearing of HH by MH during contact with health professionals.
In summary, the report expressed concern that HH was being denied the opportunity to reach his potential and enjoy the associated quality of life, that HH was not receiving appropriate nutrition, that his personal care needs were not being met at home, that HH presented regularly with symptoms of panic and anxiety, that there was an overdependence of HH on MH which might have longterm consequences, that HH's money was being paid into MH's bank account and that HH should be assisted and encouraged to be as independent as possible and participate in decisions about his life.
Those concerns led to social workers from the clinic applying to the Tribunal for a review of the guardianship and administration orders in relation to HH. A report subsequently provided to the Tribunal from the Public Trustee confirmed that MH had had difficulty in completing the accounts, and that HH's funds were not being maintained separately from MH's funds.
Following the application by the clinic, the Office of the Public Advocate (OPA) was requested to investigate and provide a report concerning the current operation of the guardianship and administration orders, whether the orders were required, and if so who might be appointed, including the wishes of HH.
The Public Advocate's representative, D, spoke to the representatives of the clinic who confirmed the concerns expressed in the documents accompanying the application for review. D also interviewed MH at his home (where HH also lived). He concluded that the need for both guardianship and administration orders continued to exist, although observed that a number of the concerns that had been expressed by the clinic had been addressed so that the situation had somewhat improved. When interviewed by D, HH expressed a preference that, if someone was to make decisions about his life, he would prefer that it was his father.
In the course of the OPA investigation, it emerged that MH wished to take HH with him to Pakistan so that HH could be reunited with family members (they had apparently spent a lengthy period in Pakistan in about 2007 with family before returning to Perth) and also so that MH could endeavour to find a wife for HH.
Against that background, after hearing from the relevant parties, on 22 January 2013, the Tribunal made the orders referred to above, replacing MH with the Public Trustee as administrator, confirming MH's appointment as plenary guardian, and asking the Public Advocate to report before the next review.

The present application

As mentioned above, the present proceedings were commenced by the Tribunal's receipt of letters from each of MH and HH. MH's letter, which was received on 5 February 2013, read as follows:
At the beginning of 2011 my son [HH] was in [Graylands] Hospital. When his signature needed somewhere, like court and other similar places, I had to go to [Graylands] first and take him for his signature. To lessen the hassle of taking him everywhere for his signature a friend of mine told me to get a letter of attorney so I can sign on his behalf. That was the reason I acquired the letter of attorney in first place. Since [HH] is at home now and he can go and sign whenever and wherever needed, I do not need the letter of attorney anymore. However, I am always available for his assistance whenever he needed me.
[HH] is aware that he has about $42,000 and he can handle his own financial dealings. He is willing to live with me and whenever needed would like to go to overseas to see his mother and other siblings and relatives. Seeing his family is his emotional need and natural right.
As I do not need the letter of attorney, please cancel it.
The letter from HH read as follows:
I am [HH] i am happy to live with my father i am happy i want to go with my father to go overseas to visit my mother brothers sisters i do every thing my self for eg medication and also sugar level test and i know my finances and i also have 42 000 $ and also my father told me before about this. give the money to myself. My money put in my account also if i need to do the sighn my self if i need help my father can do it I don't need letter of guardianship and administration please cancel this
[HH]
5/2/2013
MH subsequently confirmed that he sought to have both the administration and guardianship orders cancelled.
In view of the impending review under s 17A of the GA Act, the Public Advocate, through D, undertook the investigation and prepared the report contemplated by the Tribunal's orders of 22 January 2013. It emerged that, following the hearing on 22 January 2013, MH had indicated to D that, rather than a journey to Pakistan of relatively short duration which D had understood to be proposed prior to the hearing on 22 January 2013, MH's actual intention was to remain overseas for about 12 months. In light of that information, D had written to MH on 4 February 2013 expressing detailed concerns about the ongoing management of HH's medical treatment. The letter suggested a need for a plan or guidelines in relation to the management of HH's diabetes. Importantly, the letter addressed the difficulties associated with the management of HH's use of Clozapine, and made the point that any trip to Pakistan would need to be carefully planned in consultation with HH's treating team for the following reasons.
•There is a need to determine if Clozapine is available in Pakistan and if so from where it will be obtained, and by whom [in Australia it can only be prescribed by a psychiatrist];
•If Clozapine treatment is to continue, who will do the regular checks for blood tests which are currently monthly;
•If HH was to be 'weaned off' from Clozapine, this must be done in a controlled environment you will need to have the risks explained to you. Simply ceasing Clozapine without medical oversight is dangerous, as HH may become extremely unwell;
•Where in Pakistan do you intend to stay as [the treating team] may be able to link you to relevant services in that area.
The letter also pointed out the Public Trustee would need to be involved in the plan to travel to Pakistan so that financial implications and reporting implications could be managed.
In its report to the Tribunal for the purpose of this hearing, the Public Advocate reported that, despite the letter of 4 February 2013, MH did not appear to appreciate the concerns that had been expressed. The report also advised that MH had recently refused to consent to a nurse checking HH's blood sugar level and was generally refusing to cooperate with the treating team.
The report concluded that D no longer supported the ongoing appointment of MH as plenary guardian because:
•primarily, MH does not appear to fully appreciate his son's condition and need for medication and that no proper care plan in consultation with the treating team would result in risk to HH's health and safety;
•MH has continually refused to divulge to the treating team the GP treating HH despite requests from the treating team to clarify HH's diabetes management;
•the letters originating the s 17A application indicated a belief by MH that HH is capable of managing his own affairs, and thus his ability or willingness to provide oversight care or control in the interests of HH's health and safety must be questioned.
Whilst acknowledging the cultural issues which exist in this case, D expressed an overriding concern as to the consequences to HH should his antipsychotic medication be ceased.
Prior to the hearing, MH lodged some further documents, by way of submissions to the Tribunal. One of those explained at some length an incident where, in January 2012, HH was wrongly prescribed an excessive dose of his medication and that overprescription caused significant side effects for HH. MH complained that when he queried the medication with the treating team, he was reassured that the medication had not changed and that HH should continue to take it. It took some eight days before the error was recognised, and the correct medication was administered. MH said that HH continued to experience problems as a result of that incident, and it is apparent that MH attributes at least some of HH's present disability to that incident.
It is also apparent to us that MH's confidence in the treating team has been severely damaged as a result of the incident concerning the incorrect prescription, and because of MH's perception that the treating team did not adequately respond to his repeated questions as to whether the medication was correct. That lack of confidence is likely to have played a significant part in the presently poor level of communication between MH and the treating team.
At the hearing, HH confirmed that 'everything he said in the letter [of 5 February 2013] was true' and gave a clear indication that he supported his father's wish to take him to Pakistan. He said that he was capable of taking his medication by himself. He indicated, however, that he was not quite sure of the consequences of ceasing to take Clozapine or of its precise function.
MH expressed the strong view that questions about his son's welfare were matters for him and his son, and that no external interference was required. As to his proposals in relation to HH's medication were they to spend an extended period in Pakistan or Afghanistan, he said that he had been told by doctors that he could take three or six months medication with him, and that there were doctors in Pakistan who were capable of continuing with the management of HH's treatment. In essence, he said that if the treatment received in Pakistan was good, then he would continue there with that treatment, but if HH's medication ran out, or his treatment was not successful, he would come home. He pointed out that the original application for guardianship and administration arose when there was a need for somebody to look after HH's affairs, including signing documents, while HH was detained in hospital, but that that need no longer existed and accordingly there was no need for any further orders.
D repeated the concerns that had been expressed in his report to the Tribunal and expressed the concern that MH was not taking those concerns seriously and had no plans to arrange monitoring of his son's psychiatric health in the event that they travelled to Pakistan. He also expressed concern that MH had threatened to disengage with the treating team and that there was general uncertainty about HH's ongoing treatment. He considered that MH was not suitable to continue as guardian because of his lack of insight into his son's problems, and his unwillingness to work with the treating team. D said that the Public Advocate did not seek to prevent HH travelling to Pakistan, but rather that there was a need for liaison with medical authorities in Pakistan and that a plenary guardianship order in favour of the Public Advocate would best facilitate that outcome.
A social worker from the treating team expressed similar concerns. She pointed to significant limitations on the prescription of Clozapine, and emphasised the importance of the monitoring of the effect of the drug through blood tests on a monthly basis. She pointed out that Clozapine is a powerful drug with potentially serious side effects, and that its cessation could result in severe rebound psychosis which may make it difficult to resume the use of that medication, which is itself a medication of last resort.
HH's treating psychiatrist, Dr RD, advised the Tribunal that Clozapine was required to be accompanied by a monitoring procedure involving regular repeated white cell counts and monitoring through ECG and cardiograms. Particular complications can arise in relation to a patient's blood sugar levels, which is a matter of particular significance in respect of HH because of his diabetes.
Dr RD indicated that it was possible to make arrangements for monitoring to be undertaken for a patient overseas. He confirmed that it was possible to obtain special permission to prescribe a three months' supply of Clozapine, but no longer. He said that he had had no experience of making arrangements for ongoing treatment of a psychiatric patient in Pakistan but accepted that it is possible that arrangements could be made.
Dr RD noted that, as a complicating feature in this case, there was particular tension and disagreement at the last review which apparently concluded with MH saying that he would not be continuing with HH's treatment through the existing clinic.
Dr RD's concerns with the proposition that HH should travel from Australia to Pakistan focused principally upon the risks to monitoring, and risks of noncompliance with medication requirements by HH in an uncontrolled environment, were there to be no plan in place for his management whilst away.

The principles to be applied

The Tribunal's primary concern when exercising jurisdiction under the GA Act is the best interests of the represented person, in this case HH. Every person is presumed to be capable of looking after their own health and safety, making reasonable judgments about matters relating to their person and making reasonable judgments in respect of matters relating to their estate until the contrary is proved to the satisfaction of the Tribunal.

A guardianship or administration order may not be made where there is an alternative means of meeting a person's needs that is less restrictive of their freedom of decision and action, and any order made must be in terms that imposes the least restrictions on the person's freedom of decision and action. The Tribunal must also take into account the views and wishes of the person concerned, in this case, HH.

Should a guardianship order be made?

In order to make, or continue, a guardianship order, the Tribunal must be satisfied that HH 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.
Secondly, the Tribunal must be satisfied that HH is in need of a guardian.
If satisfied of those matters, then the question becomes who should be appointed as the guardian.
As to the first requirement, we are satisfied that HH is incapable of looking after his own health and safety and is unable to make reasonable judgments in respect of significant decisions relating to his person. We are also satisfied that HH is in need of oversight, care or control in the interests of his own health and safety. While HH is presently functioning relatively well because he is taking his medication as prescribed, we are not satisfied that he has the insight into, and understanding of, his psychiatric condition and the consequences of a failure to continue taking his medication, or of failing to undergo continued monitoring of his health. It is apparent that he has required strict guidance from his father to address his diet in order to properly control his diabetes.
That conclusion is supported by Dr RD's assessment contained in the doctor's guide provided to the Tribunal for the purpose of this application. He expressed the opinion that, should the antipsychotic medication be ceased, there would be a return to acute and severe psychotic symptoms. Dr RD also expressed the view that HH does not have sufficient capacity to recognise the impact of any change in medication on his functions and life skills and that he does not have sufficient capacity to understand fully the effect of decisions in relation to life skills on his general functioning nor the capacity to manage his financial affairs.
Having heard from both MH, and HH, we are satisfied that HH does require oversight and care or control in the interests of his own health and safety. There is no dispute to the proposition that HH has a mild to moderate intellectual impairment, although at present he is apparently functioning quite well with his day to day living and activities. We find however, having regard to the medical opinion that the maintenance of HH's health and safety requires a relatively close level of oversight, particularly in relation to the continued administration and monitoring of the Clozapine.
The question for the Tribunal is, therefore, whether HH's incapacity and his need for oversight give rise to a need for the appointment of a guardian. MH's position is clearly that, to the extent that oversight is needed, he is in a position to provide that oversight, as he had done throughout HH's life up until it became necessary to obtain formal orders following HH's hospitalisation in 2011.
Except for one problem, we would be inclined to agree with MH. Returning to the position where decisions concerning HH's welfare were made by his father, would seem to accord with HH's wishes. Oversight of HH's health and safety by his father would be appropriate having regard to s 44(2)(a) and s 44(2)(b) of the GA Act which requires the Tribunal to take account of the preservation of existing family relationships and the compatibility of the proposed appointee with HH.
The problem that we see with that course is, however, the very real risk to HH's health and welfare if his ongoing treatment involving the taking of Clozapine, or even the cessation of that treatment, is not carefully overseen and monitored by appropriately skilled health professionals. Section 44(2)(d) of the GA Act requires us to take into account whether MH will be able to perform the functions vested in him. Overseeing HH's medical treatment is, we think, a very important function of a guardian in this case. Two factors are apparent which would be of concern if the present order appointing MH as guardian were to be left unchanged or revoked.
The first is that MH has clear antagonism towards the existing treating team. While that problem might be dealt with in part by changing to a different service or treating team, any handover would need to be undertaken in an orderly and constructive fashion. We are not satisfied, that in his present frame of mind, MH would be likely to ensure an orderly handover of treatment, nor cooperate constructively with the existing treatment team either to have it continue with its treatment, or alternatively hand over treatment.
The second concern relates to MH's plan to take HH overseas without there being firm arrangements in place to ensure that the necessary monitoring of HH's health, and his ongoing treatment, is in place. We are satisfied that it is not in HH's interest, and that it may be potentially dangerous for him to travel overseas without a clear understanding of how and where he will receive ongoing treatment whilst overseas in Pakistan or Afghanistan. We are satisfied that the risks associated with inadequate monitoring, or the cessation of Clozapine other than in a controlled and carefully monitored environment, are so great that HH's best interests can only be served by having a guardian appointed who will consent to travel overseas only once those requirements are met. MH's attitude, which apparently is that he can simply make arrangements as the need arises in Pakistan or Afghanistan, in our view, lacks insight into the extent of the risk to HH.
It should not be thought that the Tribunal believes that HH should be prevented from going to be reunited with his family. The position is quite the contrary. We are prepared to accept that it may well be very much in his interests to reunite with his family, and to be exposed to the cultural norms of his ethnic background. The problem simply is that his psychiatric condition, coupled with his intellectual disability, means that great care needs to be taken in ensuring that his present stable condition, and capacity to further develop life skills, is not damaged by the consequences of unmonitored treatment or periods of no treatment.
We consider that, if MH puts aside his antagonism to the treating team, and cooperates with and supports HH's ongoing treatment and monitoring, the difficulties associated with his appointment as guardian may be able to be overcome. We consider that, in the circumstances as they have developed, there is a need for a guardian. It is appropriate that the Public Advocate be appointed with a view to providing the necessary oversight in relation to HH's health and safety, and working, if possible, towards suitable arrangements being put in place to facilitate the proposed journey to Pakistan or Afghanistan by HH with his father. That would be greatly assisted if MH cooperates with both the treating team and the Public Advocate so that an adequate plan can be put in place for HH's ongoing treatment. It may be that the loss of confidence by MH in the treating team is irretrievable. If that is so, then it may well be in HH's best interests for there to be a change to a different treating team, either within the clinic or through some other centre. That is a matter which the guardian can investigate. MH will necessarily continue to play an important day to day role in the care of HH, and it is desirable that he do so. It is to be hoped that MH will cooperate fully with the guardian so that arrangements that are best for HH can be put in place with the support of MH and the guardian. Once those arrangements are in place, it may well be, subject to circumstances at the time, that the need for the appointment of an independent guardian will no longer exist, and MH can be reappointed as guardian, assuming the need for a guardian continues to exist at all. We have therefore decided that the order appointing the Public Advocate as guardian is to be reviewed in six months' time.
We consider that it is necessary that the guardian be given plenary powers. Given the uncertainty about the timing of any proposed trip to Pakistan or Afghanistan, and the circumstances under which that is to occur, the conferral of plenary powers is desirable. It may well be necessary for the guardian to liaise with medical authorities in those countries, and any limitation on his power may fetter the guardian's capacity to deal with those authorities. It is anticipated, of course, that HH will continue to live with MH, and MH will continue to provide day to day care to HH as he has always done.

Administration

In order to make, or maintain, an order appointing an administrator, the Tribunal must be satisfied that the person in respect of whom an application is made is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate, and is in need of an administrator of his estate.
We are satisfied that, by reason of HH's diagnosed psychiatric illness, and his intellectual disability, he is unable to make reasonable judgments in respect of significant matters relating to his estate. We are mindful of the fact that his estate consists of a lump sum in excess of $40,000 received in respect of his criminal injuries compensation claim.
It is clear, and indeed it has been the position of MH in earlier proceedings, including the hearing on 22 January 2013, that HH requires assistance in relation to management of his financial affairs, for example in opening a bank account. We find that HH continues to be in need of an administrator.
On balance, we consider that at least for the present time, the existing order appointing the Public Trustee as plenary administrator of HH's estate remains in his best interests. In that way, expenditure on any proposed journey to Pakistan or Afghanistan from HH's funds can be managed so that it is consistent with decisions made by the Public Advocate as HH's guardian, and in particular might only occur once suitable arrangements are in place for HH's ongoing treatment. Section 68(3)(a) of the GA Act requires us to take into account the compatibility of whoever is proposed as administrator with the appointed guardian.
If, as will hopefully be the case, MH adopts a more constructive approach to arrangements relating to HH's treatment, and if eventually the need for a formal appointment of the Public Advocate as guardian no longer exists, it may be that the need for the appointment of the Public Trustee as administrator will also cease to exist, and that MH might be appointed to act as administrator instead of the Public Trustee.
In the meantime, however, we will confirm the order appointing the Public Trustee as plenary administrator of HH's estate, but will vary the period within which that order is to be reviewed so that it coincides with the review of the guardianship order.

Orders

1.The order of the Tribunal made 22 January 2013 appointing MH as plenary guardian of the represented person is revoked and the following order is substituted for it.
2.The Public Advocate is appointed plenary guardian of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
3.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
4.The order of the Tribunal made on 22 January 2013 appointing the Public Trustee as administrator is confirmed save that the order is to be reviewed by 31 October 2013.
5.The order appointing the Public Advocate as guardian is to be reviewed by 31 October 2013.

I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT