MJ and MWT
[2006] WASAT 59
•10 MARCH 2006
MJ and MWT [2006] WASAT 59
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 59 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:77/2005 | 31 MARCH 2005 | |
| Coram: | MR E LEIPOLDT (SENIOR SESSIONAL MEMBER) MR J JAMES (SENIOR SESSIONAL MEMBER) MS J STANTON (SENIOR SESSIONAL MEMBER) | 10/03/06 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Guardianship order made | ||
| B | |||
| PDF Version |
| Parties: | MJ MWT |
Catchwords: | Guardianship Mental illness Accommodation Community Treatment Order Less restrictive alternative |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 43, s 43(1)(b), s 51 Mental Health Act 1996 (WA) |
Case References: | Nil Nil |
Orders | 1. The Public Advocate be appointed limited guardian of the represented person with the following functions:,(i) to decide where the represented person is to live, whether permanently or temporarily;,(ii) to decide with whom the represented person is to live.,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. This order be reviewed by 31 March 2010. |
Summary | MWT is 41yearold man with chronic paranoid schizophrenia. He is currently in temporary crisis respite care and is in need of suitable accommodation. He is unable to decide where and with whom he should live, by virtue of his mental illness. He is at risk of selecting accommodation that is not in his best interests should no-one make this decision for him. The applicant is MJ, a community mental health nurse with a long-term involvement with MWT. Questions raised by the Public Advocate were whether a Community Treatment Order under the Mental Health Act 1996 (WA) or liaison of the service provider with an existing administrator without a guardianship order, could effect suitable accommodation for MWT and could be less restrictive alternatives. Furthermore, the Public Advocate raised "workability" of a guardianship order because of the represented person's history of noncompliance and scarce availability of suitable accommodation. The Tribunal appointed the Public Advocate as limited guardian of MWT for a period of five years. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : MJ and MWT [2006] WASAT 59 MEMBER : MR E LEIPOLDT (SENIOR SESSIONAL MEMBER)
- MR J JAMES (SENIOR SESSIONAL MEMBER)
MS J STANTON (SENIOR SESSIONAL MEMBER)
- Applicant
AND
MWT
Represented Person
Catchwords:
Guardianship Mental illness Accommodation Community Treatment Order Less restrictive alternative
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 43, s 43(1)(b), s 51
Mental Health Act 1996 (WA)
(Page 2)
Result:
Guardianship order made
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
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 MWT is 41yearold man with chronic paranoid schizophrenia. He is currently in temporary crisis respite care and is in need of suitable accommodation. He is unable to decide where and with whom he should live, by virtue of his mental illness. He is at risk of selecting accommodation that is not in his best interests should no-one make this decision for him. The applicant is MJ, a community mental health nurse with a long-term involvement with MWT. Questions raised by the Public Advocate were whether a Community Treatment Order under the Mental Health Act 1996 (WA) or liaison of the service provider with an existing administrator without a guardianship order, could effect suitable accommodation for MWT and could be less restrictive alternatives. Furthermore, the Public Advocate raised "workability" of a guardianship order because of the represented person's history of noncompliance and scarce availability of suitable accommodation. The Tribunal appointed the Public Advocate as limited guardian of MWT for a period of five years.
Judgment of the Tribunal
Introduction
2 MWT has a long-term history of mental illness and of ill-effects on his wellbeing. He is particularly at risk as he is easily influenced by others. In the past, this has meant that his associates included those who abused illegal substances, as did he. His former girlfriend is said to have died of such abuse at the same residence that MWT wishes to move to. He is incapable of making accommodation decisions that are in his own best interest.
3 The applicant is a community mental health nurse who has many years of involvement with MWT. He is greatly concerned about the risks to MWT should he be left to decide for himself where he should live. Furthermore, abuse of illegal substances is part of a cycle of repeated hospitalisations for MWT. Therefore, the applicant seeks the appointment of a guardian for MWT to decide these matters.
4 The Tribunal must decide whether MWT is incapable of making his own reasonable decisions in this regard, whether he is in need of a guardian, and if so, who that guardian should be and under which terms.
(Page 4)
- It must also consider whether there are less restrictive alternatives to a guardianship order.
5 Present at the hearing of this matter were: MWT, proposed represented person; MJ, applicant; BC, social worker; and PTS, delegate of the Public Advocate. LT, MWT's mother, and CT, his sister, attended by telephone link.
Background
Capacity
6 The Tribunal must consider the issue of capacity as a precursor to the consideration of application for orders relating to an adult person.
7 Section 4 of the Guardianship and Administration Act (1990) (GA Act) states:
"(1) In dealing with proceedings commenced under this Act, the Tribunal shall observe the principles set out in subsection (2).
(2) ...
(b) Every person shall be presumed to be capable of
(i) looking after his own health and safety;
(ii) making reasonable judgments in respect of matters relating to his person;
(iii) managing his own affairs; and
(iv) making reasonable judgments in respect of matters relating to his estate."
Evidence
9 In making its judgment, the Tribunal relied on the following evidence.
(Page 5)
10 Dr AT is a senior consultant in adult psychiatry and has been "involved in MWT's management of his mental illness and associated behaviours for many years." In his written report dated 23 March 2005, he states MWT's diagnosis as "paranoid schizophrenia superimposed on a significant level of cognitive disability and associated substance abuse. MWT's judgment and capacity are impaired by both his limited intellectual capacity and his psychotic illness".
11 Dr McKK is a hospital medical officer at Alma Street Clinic, Fremantle who is MWT's regular medical attendant and last saw MWT on 28 January 2005. Her written report is dated 28 January 2005. She has known him for two months. She diagnoses chronic paranoid schizophrenia and intellectual disability of a static nature. She judges MWT to be incapable of making reasonable decisions about his personal health care, citing a "history of erratic compliance with medications and treatment. Dr McKK also judges MWT to be incapable of making reasonable decisions about his living situation and states: "does not recognise difficulties of living independently despite repeated assessments which demonstrate low level independent functioning". Dr McKK states that MWT is also incapable of making reasonable decisions about his financial affairs.
12 In Dr McKK's letter to the Tribunal dated 2 February, 2005, she confirms her earlier diagnosis. However, MWT had at that time improved significantly. Despite these improvements, reports from "nursing staff and people who had been closely involved with MWT consistently demonstrate that he has significant residual functional disability".
13 Dr McKK further states:
"This application for guardianship should be seen in the context of repeated occupational therapy assessments which consistently record MWT's functional deficits, and the assessment of the treating clinicians who have had a long relationship with MWT. The service has previously attempted to support his independence in the community quite aggressively, without great success. The consensus among relevant clinicians involved in MWT's care in both in and outpatient settings is that MWT needs to be in supported accommodation while, undeniably, MWT has demonstrated improvements in a structured ward environment with the numerous supports available. This is not only in terms of providing structural support, but also providing social support to
(Page 6)
- a man who is otherwise quite lonely and vulnerable. In all, we do not expect to see a major change in MWT's capacity to live a functional, independent lifestyle, even if he maintains compliance with clozapine in the community … ."
14 MJ, community mental health nurse, has been MWT's case manager for eight years. His report dated 13 January 2005 confirms a diagnosis of chronic paranoid schizophrenia and borderline intellectual disability. He details a history of a transient lifestyle and of multiple admissions in mental health facilities as well as of many attempts by mental health services to assist MWT. MWT requires a supervised hostel environment due to his vulnerability through associating with substance abusers.
15 BJC is a social worker at Alma Street Clinic and an original applicant in this matter. In his report dated 2 February 2005, he confirmed the diagnosis of chronic paranoid schizophrenia and intellectual disability. He considers MWT vulnerable to exploitation by others and presenting with a lack of judgment and executive functioning. MWT "cannot function independently and needs a supervised, structured environment".
16 MWT's mother, LT, and sister, CT, confirmed MWT's lack of capacity to make reasonable decisions for himself with regard to his accommodation or otherwise.
17 PTS, the Public Advocate's representative, agreed that MWT did not have capacity to make reasonable decisions for himself in respect of his accommodation.
Findings
18 Upon reviewing this evidence, the Tribunal is satisfied that s 43(1)(b) of the GA Act are met and that MWT is someone for whom a guardianship order could be made.
Need
19 The Tribunal can only make an order if the needs of the person in respect of whom an application is made could not, in the opinion of the Board, be met by other means less restrictive of the person's freedom of decision and action.
20 The applicant, MJ, seeks a limited guardianship order giving the guardian powers to decide about suitable accommodation for MWT. He recommends this be the Public Advocate.
(Page 7)
Evidence
21 MWT is now in temporary crisis respite accommodation and needs longterm supervised accommodation upon discharge. MJ, in his report, describes a long history of moving from residences to treatment places and to hostels. When in a private, unsupervised residence, MWT was vulnerable to exploitation by others. An administration order was made in 2004, in part to stop financial exploitation. However, MWT was still associating with persons who were involved in illegal substance abuse. He stated during the hearing that he wished to move to a friend's place. This residence was where previously MWT's partner, also a substance abuser, had died, allegedly associated with her substance abuse. This friend is allegedly still involved in such substance abuse, and persons visiting this residence are also. An administrator was appointed for MWT on 13 July 1999. The Public Trustee's report, submitted to the Tribunal at a review hearing of this appointment on 13 August 2004, related requests from this friend, with whom MWT then resided, for more money, as he could “not support” MWT's drug use. The applicant stated that MWT would be at grave risk if he moved into this residence. According to the applicant, when MWT is in supervised accommodation, he is safeguarded from association with such persons through guidance from supervisors.
22 LT and CT, mother and sister of MWT, supported the appointment of the Public Advocate rather than MWT's mother, who was MWT's first choice. LT gave evidence that when MWT was ill, she could not influence him and that he listened better to a person with some authority under these circumstances.
23 PTS argued that, although he did not oppose the appointment of a guardian, there were several grounds for speaking against the appointment of a guardian. Firstly, he believed that an uncited Supreme Court decision that determined that a Community Treatment Order (CTO) by the Mental Health Review Board (Board) and which could be used to decide accommodation as a form of treatment was a less restrictive alternative in this matter. Secondly, another such alternative would be that the appointed administrator could direct moneys to a suitable accommodation option decided upon by MWT's treating team. Thirdly, he thought that it would be difficult to achieve MWT's compliance with a guardian's accommodation decision. Fourthly, there was a scarcity of suitable accommodation options for people such as MWT. Therefore, it was likely that an order appointing a guardian would be "unworkable".
(Page 8)
24 The applicant argued, as did Dr AT in his written report, and which BC amplified, that a CTO was not a suitable vehicle to direct accommodation, and specifically cited that acting under a CTO for this purpose had a direct negative effect on the therapeutic relationship between the mental health service and MWT. Dr AT specifically argued that there was a conflict of interest involved in being the person or treating team that diagnosed MWT and treated him, and was able to rescind a CTO if conditions were breached. An independent person in the form of a guardian was in a better position to objectively weigh up the accommodation options for MWT. He states: "In situations like this when a patient is embroiled in disagreement with Mental Health Services and myself over the terms of a CTO and its imposition (through the reduction of their rights) I believe that it is important that they have an independent advocate." He believed that MWT was now in a similarly vulnerable position that his deceased partner was in after a guardianship application for her was "declined." He wanted to avoid a similar fate for him.
25 According to MJ, using the appointed administrator to achieve a decision by the treatment team for suitable accommodation faced the same issue with regard to negative effect on the therapeutic relationship. Besides, the applicant believed that an administration order was not the correct vehicle to make accommodation decisions for MWT.
26 All reports confirm MWT has a chronic condition. AT, in his report, says: "MWT will never be in a position to advocate adequately for himself due to his poor education, compromised intellect and psychotic illness. I believe it is in MWT's best interest to have an advocate allocated to him through the structure of a limited guardianship order."
27 Further, AT wrote that "appropriate staffed accommodation for individuals with severe mental illness and intermittent behaviour disorders with substance abuse in Perth currently are very limited. It is relatively easy for a treating team to place an individual in an inappropriate venue outside their catchment area, which may not be in the best interest of the client. While we have never done this and have remained involved and proactive in dealing with MWT, I believe there is a strong case for an independent advocate to be appointed to prevent potential cynical placement of vulnerable individuals such as MWT."
Findings
28 Upon review of the evidence before it, the Tribunal finds that there is a need to appoint a limited guardian for MWT with the powers to decide where MWT should live and with whom.
(Page 9)
29 MWT is a highly vulnerable person who is now in crisis respite accommodation awaiting placement in suitable accommodation. He is unable to make reasonable decisions himself about where and with whom he should live and is easily influenced and exploited by others. The influence of others includes the abuse of illegal substances. The use of these substances cause MWT to have further episodes of his mental illness, and during such times, his vulnerability further increases and he is likely to be hospitalised.
30 MWT wishes to move to that same private residence involving the same home occupier as at the time when his former girlfriend died there, allegedly of substance abuse.
31 MWT needs supervised accommodation to safeguard him from harming himself through substance abuse and from contact with those who supply these substances. There is a recent history of supervised accommodation where the supervisor could guide him away from such harmful practices and from undesirable associates.
32 The Tribunal responds to objections to an order being made voiced by PTS of the Public Advocate's office in the following terms. There is disagreement among the relevant mental health professionals about the use of a CTO to decide where and with whom a mentally ill patient should live. MWT's treating psychiatrist and those members of his treating team present at the hearing cite a conflict of interest impacting on the therapeutic nature of their relationship with MWT. The Tribunal makes its decisions based on the merits of each case, and believes that MWT is particularly vulnerable to exploitation and is best served with immediate clarity as to who should make decisions about his accommodation. Given the conflict of interest that his treating team experience, the Tribunal agrees that it is desirable to appoint an independent guardian whose role explicitly includes advocacy under s 51 of the GA Act. Furthermore, it seems to the Tribunal that even if a CTO were a vehicle to make accommodation decisions, in MWT's case, a longterm appointment is needed rather than one under threemonthly terms only under a CTO. MWT's illness is chronic and its adverse consequences in his life are longstanding.
33 Under s 51 of the GA Act, a guardian shall act in the best interests of a represented person if the guardian acts, as far as possible, as an advocate for the represented person. This is precisely what is needed in MWT's case where suitable supported accommodation must urgently be found for him in the face of scarce availability. Leaving this to any mental health
(Page 10)
- team without an order is unsatisfactory given their restrictive regional boundaries and said conflict of interest. This option, therefore, may well be "less restrictive" of MWT's freedom of decision and action but is not in his best interests and is therefore not viable.
34 The Tribunal rejects the suggestion that, in this matter, the appointed administrator should determine MWT's accommodation by directing accommodation fees to accommodation selected by MWT's treating team. The conflict of interest, having an impact on the said therapeutic relationship, would still exist. Furthermore, the issue of with whom MWT should live is not necessarily thereby safeguarded as well as it is through an explicit guardianship order that includes this power. Neither is this option therefore a viably less restrictive one.
35 As for "workability", the Tribunal does not accept that this should be predetermined in MWT's case. It is an inherent part of MWT's illness that he is not always compliant, and this fact renders him vulnerable. Certainly the Tribunal accepts that the guardian's role may be a difficult one and that a guardian cannot force MWT to comply with his accommodation decisions. However, the evidence is that persons whom MWT recognises as being in authority are able to guide him. The Public Advocate has the standing of her office behind her to try and achieve a suitable accommodation outcome for MWT. The scarcity of suitable accommodation resources is a limiting factor, but nevertheless, a resolution should be attempted before being judged unworkable.
Wishes of the represented person
36 MWT initially expressed that he can make his own decisions about where and with whom he should live. He qualified that by saying: "In some ways. In others I cannot." (transcript page 4)
37 If a guardian were appointed, MWT stated that he wished to have his mother appointed. His mother was asked whether she would take on this role but she declined. She lives some distance away in a rural area and thought it would be better for an independent party with some authority to be appointed. Her daughter, CT, supported this position, as did BC.
38 Later in the proceedings, MWT had no objections to the appointment of the Public Advocate as guardian.
Conclusion
39 The Tribunal accepts that MWT is a highly vulnerable man as a result of the effects of his mental illness. He is not able to make
(Page 11)
- reasonable decisions about a suitable place of accommodation for himself, nor about with whom he should live.
40 Accommodation decisions must be made, as MWT is in temporary crisis respite accommodation. It is in his best interests that suitable longterm accommodation be found for him as soon as possible. This may not be easy and requires persistent and skilful advocacy by a party that is independent from MWT's treating team.
41 A guardianship order appointing the Public Advocate for this purpose is in MWT's best interests. It ensures that an independent and competent decisionmaker and advocate is in place immediately and over the long term. Doing so befits his needs of chronic mental illness and selfharmful behaviour in a human service landscape of scarce and uncertain availability of suitable supported accommodation options.
42 The Tribunal believes that, in this matter, it should not rely on any CTO such as has been, or may be made, for MWT. In view of apparent considerable professional disagreement and uncertainty about the use of CTOs in deciding where and with whom an incapable person should live, and a CTO’s shortterm nature, a CTO is not considered to be a viable less restrictive alternative in this instance. Furthermore, the Tribunal believes that a guardianship order in this matter is superior to a CTO, even if there were no such disagreement. The guardianship order provides the longterm safeguards and advocacy that MWT needs, and the guardian is an independent decisionmaker and advocate, thereby avoiding any conflict of interest between service provider and represented person concerning any adverse impact on this therapeutic relationship. This therapeutic relationship is valuable for MWT as it is one of his safeguards against the illeffects of his highly vulnerable status.
43 Therefore the Tribunal orders that:
The Tribunal is satisfied that the represented person:
(a) has attained the age of 18 years;
(b) is
(i) incapable of looking after his own health;
(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
(iv) is in need of a guardian; and
(v) cannot have such need met by other means less restrictive of his freedom of decision and action.
Order
44 It is ordered that:
1. The Public Advocate be appointed limited guardian of the represented person with the following functions:
(i) to decide where the represented person is to live, whether permanently or temporarily;
(ii) to decide with whom the represented person is to live.
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. This order be reviewed by 31 March 2010.
I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR E LEIPOLDT, SENIOR SESSIONAL MEMBER
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