ML - [2012] WASAT 184

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: ML [2012] WASAT 184

MEMBER: MS F CHILD (MEMBER)

HEARD: 18 MAY 2012

DELIVERED : 3 SEPTEMBER 2012

FILE NO/S: GAA 995 of 2012

MATTER :ML
Represented person

Catchwords:

Guardianship and administration - Review of orders - Mental health diagnosis - Review of orders made when represented person an involuntary patient and subject to Health Act 1911 (WA) notice that home unfit for human habitation - Continuing need for orders to effect house repairs - Direction to administrator to store furniture because storage uneconomic

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 43(1)(b), s 44(5), s 64
Health Act 1911 (WA)
Mental Health Act 1996 (WA)

Result:

Orders confirmed with direction to administrator

Category: B

Representation:

Counsel:

Represented person : [Name deleted] (Acting as Agent)

Solicitors:

Represented person : Council of Official Visitors

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

On review of orders which appointed the Public Advocate as limited guardian and the Public Trustee as plenary administrator, originally made when the represented person was an involuntary patient under the Mental Health Act 1996 (WA) detained in a mental health facility, the Tribunal confirmed the orders, although the represented person had been discharged to the community. The Tribunal determined that there was a continuing need for a guardian to determine where the represented person was to live while her home was repaired and to consent to services on her behalf, and an administrator to negotiate with the local government authority and undertake the repairs on her property, which had been declared unfit for human habitation by the local government authority pursuant to the Health Act 1911 (WA).
Although the represented person had been discharged from involuntary status and was living in a residential care facility, the Tribunal determined that she remained a person for whom orders could be made, and there was a need for the guardian to give consent to the continuation of respite accommodation and to services to ensure that the represented person had somewhere to live while her property was being repaired. The represented person, because of her diagnosed paranoid personality disorder, could not work cooperatively with services. For example, she refused to engage with the social worker responsible for arranging the continuation of respite accommodation. Although the Tribunal found that the represented person needed medical care and that her paranoid beliefs interfered with her accessing treatment, the function to make treatment decisions was not included in the guardianship order made, as there was a possibility that this need could be met by less restrictive means.
In respect of the administration order, the evidence was that, although the represented person saw the need for repairs to her property, her diagnosed mental disability intruded on her ability to take the steps necessary to give effect to the repairs. The Tribunal determined that she remained in need of an administrator to deal with the issues associated with the Health Act 1911 (WA) notice and the repairs to her property.
The Public Trustee, as plenary administrator, sought directions in relation to the storage of the represented person's remaining furniture and personal effects, because the cost of storage would be more than the assessed value of the property stored. The direction was given to the administrator that property of the represented person be stored until she was able to return to her home.
The orders were set for a short review period, as the Tribunal accepted the submissions of the Public Advocate that there would be no need for the orders once the represented person was again living in her home with home help services.

Background

These written reasons are of decisions made on 18 May 2012 to confirm the appointment of the Public Advocate as guardian for the represented person and the Public Trustee as administrator of her estate. Those decisions follow a review of orders made in October 2011. Brief oral reasons were delivered on the day of the hearing. These written reasons have been taken from the transcript and edited for clarity and to remove any identifying information, as is required by the Guardianship and Administration Act 1990 (WA) (GA Act), and are provided at the request of the represented person through her agent.
At the time of the original applications made by the treating team at [name of facility removed mental health service], the represented person was an involuntary patient under the Mental Health Act 1996 (WA) (MH Act), having been admitted to the hospital. Prior to her admission, a declaration pursuant to the Health Act 1911 (WA) (Health Act) had been made by the local government authority that her house was unfit for human habitation. The represented person was assisted by the social worker at the mental health service to seek review of the declaration in the Tribunal.
An application was made by the treating team for the appointment of a guardian and an administrator, due to the need to address the represented person's legal issues in respect of the Health Act notice, and to consider the need for decisionmaking as to where she would live while the property was being repaired.
At the time of the original appointments of a guardian and administrator, the Tribunal made findings that the represented person was in need of oversight and care in the interests of her own health and safety, that she was incapable of looking after her own health and safety, and that she was unable to make reasonable judgments in matters relating to her person. The Tribunal also made the finding that she was unable, by reason of a mental disability, being a diagnosis of Dr W's report, to make reasonable judgments in relation to her estate, in particular, her house property and in relation to proceedings in the Tribunal to challenge the health notice. Those findings were based on medical and social work reports available to the Tribunal from Dr W, a psychiatrist, dated 16 September 2011, and Ms B, the social worker.
The Tribunal found that the represented person was in need of an administrator to deal with the litigation and with the repairs to the property, and was in need of a guardian to make personal decisions on her behalf about where she should live, the services to which she should have access, and the treatment decisions to be made on her behalf. The orders were set for review by October 2012. On 20 March 2012, the represented person sought early review of the orders. Her application for review was listed on 18 May 2012. For the review, the Tribunal sought an uptodate report from a psychiatrist, Dr SF, who had assessed the represented person on 13 April 2012.

Review

All orders made for the appointment of a guardian and administrator under the GA Act are reviewable, and the Tribunal must consider, on review, whether the represented person is a person for whom orders can be made, whether there is a need for the orders and, if so, who should be appointed in those roles.
Section 43(1)(b) of the GA Act provides that to appoint a guardian, the Tribunal must be satisfied that the represented person is incapable of looking after her own health and safety, is unable to make reasonable judgments in respect of matters relating to her person, or is in need of oversight, care or control in the interests of her own health and safety or for the protection of others, and is in need of a guardian.
Section 64 of the GA Act provides that to appoint an administrator, the Tribunal must be satisfied that the represented person is unable, by reason of a mental disability, of making reasonable judgments about any or all of her estate, and is in need of an administrator of her estate.
These provisions are subject to principles in the legislation, set out at s 4 of the GA Act, which provide that there is a presumption that people can make their own decisions about their person and about their financial affairs unless there is evidence to the contrary. The principles also state that orders should only be made if there are no less restrictive ways of meeting the represented person's needs, and that any orders that are made should be made in the least restrictive way possible. In dealing with any matter under the GA Act, the Tribunal must ascertain the wishes of the represented person. However, the primary obligation of the Tribunal in dealing with matters under the GA Act is to act in the best interests of the represented person.
The issues to be determined in the review are:
•Is the represented person a person for whom these orders can be made?
•Is the represented person in need of the orders?
•If so, what functions should be included in the orders made?
•Who should be appointed in those roles, and the length of the orders?

The represented person's views

The represented person was assisted to prepare written and to make oral submissions at the hearing by an advocate from the Council of Official Visitors (COOV).
Although the represented person states that she recognises that there is a need to have her house repaired, acknowledging in the review hearing significant problems, including a collapsed ceiling, she states that she does not have a psychological disability warranting the orders made by the Tribunal. She says that she was released from hospital, and was released from involuntary status under the MH Act, in February 2012, when Dr SF, a psychiatrist, revoked the community treatment order. She says that she is not on any medication for a psychological disability and does not agree that she has a mental illness that impairs her decisionmaking. She says that she accepts that she needs some help to get her house repaired, and accepts the Aged Care Assessment Team (ACAT) assessment that she needs some home help services, but asserts that her decisionmaking is not impaired. She says that she wants to get her house repaired as quickly as possible and return to living in her home with what is left of her possessions. She wants to manage her own life, to pay her own bills, to buy and cook her own food, to work in her garden, and to do what she wants within her physical limits.
Although the represented person does not accept that she has a mental health diagnosis, Dr SF, in a report dated 17 April 2012, which had been provided to the represented person by Dr SF, gives a diagnosis of 'paranoid personality disorder', which he says is characterised by 'suspicious behaviours' and 'suspicion of other person's motives'. Dr SF's opinion is that these beliefs interfere with her ability to complete tasks. He says that the represented person has capacity, but that capacity is interfered with by her beliefs. He says that her condition is not amenable to medications and her '… pattern of frequent adversarial interactions will remain over the longer term'.
The occupational therapy report obtained by the Public Advocate to assess the represented person's functioning indicates that the represented person has capacity to manage daytoday matters.
The Tribunal is satisfied, based on the report of Dr SF, that the represented person is a person for whom a guardian and an administrator can be appointed. The Tribunal finds that the represented person is not able to look after her own health and safety, is not able to make reasonable judgments about her person, and is in need of oversight and care in the interests of her own health and safety. The evidence is that she was not able to see the health and safety risks of living in her property. While the property repairs are significant, the represented person's view is that the reasons for the notice is that the council 'object[s] to any relationship with the birds'. Additionally, she reports that she has had a hearing problem for many years which requires medical treatment, but she has not addressed this because of distrust of general practitioners. The Tribunal finds that she is in need of oversight and care in relation to a number of matters, including litigation conducted in the Tribunal with the local government authority. Although she is reported to have originally cooperated with the social worker who assisted with the challenge to the Health Act notice, she will now no longer work with her and wants nothing to do with her.
The Tribunal determines that the represented person is in need of a guardian to consent to services on her behalf, including the involvement of the social worker from the mental health clinic to continue to facilitate her applications for the continuation of respite care. The social worker must arrange the continuation of the respite with the consent of the guardian. There is a risk that the represented person will withdraw her consent to involvement with the social worker, as she has done previously, and that the arrangements for respite care might break down. The represented person would then be at risk of homelessness because she has nowhere else to go until her home is repaired. The Tribunal is satisfied that there is no less restrictive way of dealing with these arrangements based on the evidence of Dr SF about the difficulties associated with the represented person understanding what needs to be done, but not being able to act on that understanding because of intrusive views about not being able to trust people and not being able to rely on professionals. This is supported by the evidence of the social worker, who reports that arrangements had been initiated to address the repairs during the represented person's previous admission to hospital, but that the represented person had then refused contact with her and the treating team. The represented person's own comments in the hearing support this. The intrusions of her paranoid beliefs on the represented person's ability to act where she needs to, means that someone else needs to act on her behalf, so that a guardian needs to be appointed.
The Tribunal finds that there is no less restrictive alternative to the appointment of a guardian to determine services. Although the represented person says that she is willing to accept services and understands the need to engage with the Public Trustee to repair the property, she also said in the course of the hearing that '[the health service has] instructions from me that [the social worker is] to have nothing further to do with me' (T:59; 18.05.12). The represented person reiterates that the social worker 'has no responsibility from my point of view' (T:59; 18.05.12). Because of the risk that the service provision by the social worker and the decision in relation to respite care could easily break down without formal authority vesting in the guardian rather than the represented person, the Tribunal finds that there is a need for the order.
In relation to the question of the need for medical treatment, the Tribunal accepts the evidence of the represented person that she has had deteriorating hearing over a period of 10 years. The represented person's presentation at the hearing was of a person with a severe hearing impairment, which significantly impacted on her ability to participate in the Tribunal hearing. However, she agreed in the hearing that she had not sought investigation or medical treatment. She said that she had experienced discharge and pain in her ears some months prior to the review hearing, but again, had not sought medical attention as she did not 'have faith in the doctors' (T:27; 18.05.12).
In response to the report of Dr SF that the represented person had a diagnosis of paranoid personality disorder, she said that her beliefs were 'maturity, not paranoia'. In response to the proposition that she did not trust people, she responded 'I don't trust inferior minds' (T:28; 18.05.12).
In relation to the need for a guardian to consent to medical treatment, the Tribunal considers that this need might be achieved in a less restrictive way, because the represented person expressed her willingness to attend a general practitioner when an appointment was made for her at the respite care facility. Additionally, the Tribunal also finds that the represented person is so opposed and adversarial to the orders that she might be adversarial to a guardian appointed to deal with medical treatment, and therefore might not cooperate with arrangements made for the assessment of her hearing loss. The social worker indicates that, in the previous admission, forms had been completed for an assessment of the represented person at the hearing centre, but this had broken down when the represented person would no longer cooperate with her. However, the advocate from the COOV has been assisting the represented person through the process of the proceedings before the Tribunal and, together, it is felt that they may be able to achieve an assessment of the represented person's hearing loss. The guardian is needed to accept services, including the involvement of the social worker from the mental health service to facilitate respite care and arrangements for assessment of the represented person at the hearing service.
The decision not to include treatment decisions in the guardianship order is made because there may be a less restrictive way of achieving the assessment of the hearing loss and treatment for it without involving a guardian, and this is consistent, in part, with the wishes of the represented person that orders not be made.
The Public Advocate is reappointed as limited guardian to determine where the represented person is to live, because that authority is needed to ensure the continuation of the respite bed, and to consent to the services of the mental health facility, including social work services, to facilitate the respite and other services, such as the hearing service.
The Public Advocate is appointed as there is no other proposal for appointment (s 44(5) of the GA Act).
The order is to be reviewed on 18 November 2012.
In respect of the administration order, the Tribunal finds that the represented person is unable, by reason of a mental disability, being the paranoid personality disorder, of making reasonable judgments about her estate; that is, in relation to the repair of the property and in her dealings with the local government authority. Although the represented person states that she recognises the need to repair the property, prior to the appointment of an administrator, the arrangements for repair of the property broke down. Also, the represented person does not appear to accept the full implications of the Health Act notice as, when it was put to her that there were longstanding issues with the property, she said:
Yes, because I feed the birds and they object to any relationship with the birds. (T:9; 18.05.12)
The mental disability is identified by Dr SF, and the Tribunal accepts and relies on his evidence, which says, in part:
… [The represented person] is aware of the composition of her estate. Her ability to manage her affairs is however compromised by her focus on adversarial interactions and a tendency to become overly focused on details to the exclusion of task completion. I see this as the basis underlying her house's condition. She is likely to defer decisions on repairs/purchases indefinitely with significant adverse consequences for herself. It is my view that she requires an administrator to ultimately undertake these tasks. A grant of enduring power of attorney to the [Public Trustee] would be ineffective as [the represented person]'s tendency to adversarial relationship would see her revoke this power in short order.
…
The Tribunal finds that there is no less restrictive alternative to achieve the outcome of the repair of the represented person's property. The Tribunal finds that less restrictive alternatives were tried in the previous year, when efforts were made by the social worker and the treating team to address the issues that had brought the represented person into hospital, including that her house had been declared uninhabitable and that she could not return to it while it remained in that state. Efforts were made to engage with the represented person and to address the issues raised by the local government authority, but without the authority of an administrator, the arrangements made could not proceed. The Tribunal considers that the Public Trustee, who now has authority to deal with those matters on the represented person's behalf, can bring this matter to a conclusion in the best interests of the represented person.

The Tribunal determines that the Public Trustee should be reappointed on the same terms; as plenary administrator, but with a direction in relation to the storage of the represented person's furniture. The Tribunal accepts the submission of the Public Trustee that the financial valuation of $710 placed on the remaining contents of the represented person's property means that storage of these items over a period would be uneconomic, and, on its face, would not be in the financial best interests of the represented person. However, given the advocacy of the COOV and the represented person's own expressed wishes that her remaining personal items and furniture be preserved, the Tribunal directs that the administrator pay for the storage of the represented person's property until she is able to return to her home.
The orders were made reviewable in November 2012 because the submission of the Public Advocate is accepted that, once the house property of the represented person has been repaired and she can return, there will no longer be a need of a guardian to accept services or to determine where she is to live.
In respect of the administration order, the evidence of the represented person, supported by the occupational therapy assessment, is that she can manage her own financial affairs. This supports the view that, once the house property is repaired and the litigation with the local authority is concluded, there will no longer be a need for an administration order. The administration order is to be reviewed by November 2012.

Orders

For the above reasons, the Tribunal makes the following orders:

Guardianship

1.The order is revoked and a guardianship order in the following terms is substituted for it:
The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia be appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live; and
(c)to determine the services to which the represented person should have access.

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 is to be reviewed by 18 November 2012.

Administration

1.The order is revoked and an administration order in the following terms is substituted for it:
The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administrator is directed to arrange the storage of furniture and personal items of the represented person while she is unable to live at her home.
3.This order is to be reviewed by 18 November 2012.

I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER