MW - [2005] WASAT 205

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: MW [2005] WASAT 205

MEMBER: MS F CHILD (MEMBER)

HEARD: 14 OCTOBER 2004
12 NOVEMBER 2004
25 MAY 2005

DELIVERED : 12 AUGUST 2005

FILE NO/S: GU 226 of 2004
AD 605 of 2004

BETWEEN: MW
Applicant
LTD
Represented Person

Catchwords:

Guardianship and administration - Need for a guardian - Represented person with intellectual disability, complex medical and behavioural management issues - Need for lawful authority to consent to medical treatment which includes psychiatric treatment - Need for an independent administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 43, s 44(5), s 51, s 64

State Administrative Tribunal Act 2004 (WA), s 167

Result:

Public Advocate appointed limited guardian to consent to medical treatment
Public Trustee appointed plenary administrator

Category: B

Representation:

Counsel:

Applicant: Selfrepresented
Represented Person : Selfrepresented

Solicitors:

Applicant: Self-represented
Represented Person : Self-represented

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

Re BCB; Application for Guardianship Order, (2002) SR (WA) 338
Re BTO (Unreported decision of the Full Board delivered 14 October 2004

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary

The Public Advocate was appointed limited guardian for a 64‑year‑old woman with dual diagnosis of an intellectual disability and psychiatric illness who was a resident in a nursing home. The function of the guardian was to consent to treatment and care of the woman who had complex medical and behaviour problems, and was prescribed a number of medications.
Although it was accepted by the Tribunal that she was receiving a good level of care and support in the nursing home in which she lived, the Tribunal made the appointment of the Public Advocate as guardian as there was no one in her life who was able to give lawful consent to treatment.
The Public Trustee was appointed administrator for her estate as though the estate was relatively small there remained a need for independent, transparent, and accountable processes for its management, which could not be provided without the appointment of an administrator.

Background

The applications in this matter were made by MW, a supervisor for the Disability Services Commission (DSC). The applicant sought the appointment of a guardian for LDT (the represented person) who was at the time of the hearing a resident of Casson Homes, an accommodation service for persons with psychiatric and other disabilities.
The application was lodged with the Guardianship and Administration Board (the Board) on 10 September 2004. The application was adjourned for the purposes of investigation by the Public Advocate of the need for the appointment of a guardian and for the applicant to submit an application for the appointment of an administrator, which she did on 14 October 2004.
The hearing was reconvened on 12 November 2004 (the second hearing) and further medical and other evidence was provided including a report from the representative of the Public Advocate (the Public Advocate). The issue considered at that hearing was whether there was a need for the appointment of a guardian for the purposes of consent to medical treatment and chemical restraint of the represented person due to the risks to her safety and the safety of others. The applications were adjourned again to obtain more information from the represented person's general practitioner and psychiatrist regarding the medical treatment and the behaviour management arrangements in place for her. Further information was also sought about possible less restrictive alternatives to the making of an administration order.
The hearing was reconvened on 27 May 2005, and following that hearing the Public Trustee was appointed plenary administrator with review of the order in five years. The decision in relation to the guardianship application was reserved. These written reasons follow the appointment of the Public Advocate as limited guardian for the represented person.
From 24 January 2004, the Board ceased to exist and the State Administrative Tribunal absorbed the Board's former jurisdiction and functions. As the applications in respect of LDT had been partly heard but not determined by the Board on that day, the applications were transferred and continued before the Tribunal pursuant to s 167(4)(b) of the State Administrative Tribunal Act2004 (WA).

The applications and evidence before the Tribunal

The applicant sought orders pursuant to s 43 and s 64 of the Guardianship and Administration Act1990 (WA) (the Act) appointing the Public Advocate as guardian and the Public Trustee as administrator for LDT.
The hearings of the applications were attended by LDT, the applicant, the Director of the nursing home, and the Public Advocate.
In the course of the hearing of the applications, written reports were received from the applicant, the Director of the nursing home, the general practitioners of the represented person, a consultant psychiatrist, and a consultant from the Department of Geriatric Medicine of the Swan Health Service. The Public Advocate provided written responses received from the current treating doctors to a questionnaire regarding medication use.
According to the written applications, DSC had been the primary service provider to the represented person since she moved into residential care. She has been a resident of various DSC facilities since about 1983, and prior to that, had apparently lived with her mother.
The applicant stated at the hearing that the numerous medical issues that had arisen for the represented person in the preceding 12 months had prompted the application for the appointment of a guardian.
At the time of the hearing of the applications, the represented person had been moved to the nursing home, which was said to be better able to meet her need for supervision and care due to its higher level of staffing.
According to the report of Dr AH, the previous general practitioner dated 3 September 2004, the represented person has a diagnosis of: "Intellectual disability from birth". Dr AH described the impairment as "progressive" and stated that the represented person was incapable of making decisions about her personal health care, her living situation, and her financial affairs and incapable of executing a valid enduring power of attorney.
In a report of Dr AB, consultant, Swan Aged Care Service, dated 10 August 2004 refers to: "falls", "unsteady gait", "episodes of aggression, urinary incontinence, intellectual impairment since birth, behavioural disturbance (maintained on sodium valporate)." Later in the report she stated: "It is difficult to assess this lady. Her symptoms may be a manifestation of Sodium Valporate toxicity". The doctor recommended a reduction in dose of that medication.
Dr RS, the treating general practitioner at the time of the hearings, provided a report dated 1 January 2005, following a request from the Public Advocate for expansion of comments he had made during the second hearing regarding the use of medication to manage the aggressive behaviour of the represented person. He provided the following details of the medication prescribed for the represented person: "Fluvoxamine" (an antidepressant), "Sodium Valporate" is a "mood stabiliser", "Medroprogestran–Hormonal" (which is understood to be for the purposes of menstrual management), "Premarin" (oestrogen only medication), and "Olanazapine" (an anti psychotic).
Dr BL, consultant psychiatrist, stated in his report dated 3 December 2004, that the represented person had been diagnosed with "bipolar mood disorder (as the underlying cause of her episodic aggression)" and "Obsessive–compulsive disorder". He noted the medications used. It is noted that only Fluvoxamine and Sodium Valporate are referred to in his report. He stated that the medications were for the purposes of behaviour management but that the behaviours were as a result of the represented person's diagnosed condition and that the medications were not for the purposes of "chemical restraint".
The Director of the nursing home provided a report which noted the following health issues for the represented person "perinatal anoxia, widespread atrophic changes, UTI, poor mobility/chest infection, bronchitis/depression ear /eye infection, incontinence". She noted that the represented person "displays inappropriate behaviours to other residents".
During the second hearing the applicant provided information about the behaviour issues of the represented person. The applicant had known the represented person for many years and stated that she had a history of aggressive behaviour which involved "targeting other residents, hitting, scratching and also self mutilating".
The applicant identified the use of the Sodium Valporate as an aid to management of the aggressive behaviour of the represented person, rather than medical treatment (transcript page 17 second hearing). She stated that DSC staff had examined the behaviours and had involved the clinical psychologist of DSC in attempting to deal with them. She stated that the staff had "tried so many strategies prior to medication. Nothing worked" (transcript page 19). She stated that the medication had been used as a "last resort", but had improved the quality of life of the represented person.
Following her investigation, the Public Advocate submitted that there was no need for a guardian as the represented person was well cared for in her current accommodation, her needs were met and that her medical care was "optimal".
This view was supported by the director of nursing, who stated that the represented person was well cared for by the team of professionals associated with her care, including herself as director of the nursing home, the nursing staff, occupational therapists, and medical practitioners. She considered that the team approach contributed to the quality of care and provided a degree of oversight and accountability in the care delivered to the represented person. She stated that the represented person was seeing the psychiatrist regularly and the general practitioner was in touch with him by telephone should changes to treatment be required.
The Public Advocate also submitted during the hearing that consent to psychiatric care might be considered to be outside the scope of the authority of a guardian.
In respect of the administration application, which the applicant brought at the request of the Tribunal, the evidence was that the estate of the represented person was very simple. She received a Disability Support Pension, and funds had been saved from that payment and the accrued funds were held in the DSC "trust" account. The balance of that account as at 1 April 2005 was $10 879.35.
It was proposed by the applicant that these funds be transferred to the nursing home to be managed on behalf of the represented person.
The Public Advocate had investigated the options for the management of the funds of the represented person by the staff at the nursing home and submitted at the second hearing that the proposed arrangement might operate as a less restrictive alternative to the making of an administration order.
The administrator of the nursing home provided a letter dated 25 November 2004 setting out the details of the represented person's estate and how the funds were currently managed: her pension was received by the nursing home, the fees deducted and the balance deposited into a resident's "trust account".
The Tribunal was told that staff operated the residents trust accounts with two of three signatories required to sign. The letter stated that the nursing home itself was subject to audit by the Commonwealth Department of Health and Ageing and the State Government Private Sector Licensing Unit. In the letter dated 25 November 2005, an offer was made to "provide regular copies of bank statements and an account of funds withdrawn/deposited to you on a regular basis if you so wish".

Legislation

Before a guardian can be appointed under s 43, the Tribunal must be satisfied that the person for whom the application is made has attained the age of 18 years; is incapable of looking after her own health and safety; 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.
Before an administrator may be appointed, the Tribunal must be satisfied the person is unable by reason of mental disability to make reasonable judgments in respect of matters relating to all or any part of her estate; and is in need of an administrator of her estate.
Section 43 and s 64 of the Act, for the appointment of a guardian and administrator respectively, are expressly subject to s 4 of the Act, which provides:
"4(1) In the performance of its functions the Tribunal shall observe the principles set out in subsection (2).
(2)(a)The primary concern of the Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(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,
until the contrary is proved to the satisfaction of the Tribunal.
(c)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 Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(d)A plenary guardian shall not be appointed under section 43(1) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the Tribunal, to meet the needs of the person in respect of whom the application is made.
(e)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the Board, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(f)In considering any matter relating to a represented person or a person in respect of whom an application is made the 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."
In determining the appropriate appointment of a guardian s 44(5) of the Act is relevant to this matter in that unless she is appointed to act jointly with another person or persons, the Public Advocate shall not be appointed as a guardian unless there is no other person suitable and willing to act.
The Act provides in s 119, a regime for consent to be obtained for medical treatment for patients who are incapable themselves of consenting to treatment. This may mean that there is no need for the appointment of a guardian as this arrangement can operate as a less restrictive alternative to the making of a guardianship order.
The section provides:
"119 Medical and dental treatment
(1)If in the opinion of a practitioner a person presented to him for treatment ¾
(a)is in need of urgent treatment;
(b)is incapable of consenting to the proposed treatment; and
(c)is at the time of presentation a person for whom a guardian could be appointed under this Act,
the practitioner may provide the treatment if the person referred to in subsection (3) consents to it.
(1a)A practitioner may provide treatment under subsection (1) without the consent of the person referred to in subsection (3) if in the opinion of the practitioner it is not practicable to obtain that consent.
(2)If in the opinion of a practitioner a person presented to him for treatment ¾
(a)is in need of treatment that is not urgent treatment;
(b)is incapable of consenting to the proposed treatment; and
(c)is at the time of presentation a person for whom a guardian could be appointed under this Act,
the practitioner may provide the treatment if the person referred to in subsection (3) consents to it.
(3)For the purposes of subsections (1) and (2), the person who may consent to treatment is the first in order of priority of the following persons ¾
(a)a guardian of the person needing the treatment;
(b)the spouse or de facto partner of the person needing the treatment;
(c)a person who, on a regular basis, provides or arranges for domestic services and support to the person needing the treatment but does not receive remuneration for doing so;
(d)a person who is the nearest relative (other than the spouse or de facto partner) of the person needing the treatment and who maintains a close personal relationship with the person needing the treatment;
(e)any other person who maintains a close personal relationship with the person needing treatment; or
(f)a person prescribed in the regulations.
(3a)For the purposes of subsection (3) a person is to be regarded as maintaining a close personal relationship with the person needing the treatment if the relationship is maintained through frequent personal contact and a personal interest in the welfare of the person needing the treatment.
(4)In this section ¾
"practitioner" in relation to medical treatment means a medical practitioner within the meaning of the Medical Act 1894, and in relation to dental treatment means a dentist registered under the Dental Act 1939; and
"urgent treatment" means treatment that in the opinion of the practitioner concerned is urgently needed ¾
(a)to save the life of the person needing the treatment;
(b)to prevent serious damage to the health of the person needing the treatment; or
(c)to prevent the person needing the treatment from suffering or continuing to suffer significant pain or distress."

Findings

Capacity

It is clear from the evidence of the applicant, the medical evidence submitted and the presentation of the represented person at the hearings that she is not capable of making decisions in respect of or managing any aspect of her financial or personal affairs. She is entirely dependent on others for these matters. She is therefore a person for whom both guardianship and administration orders may be made.

Need

Orders for the appointment of a guardian and administrator may not be made simply because the person has an incapacity to deal with these matters for herself. As set out above the legislation requires the Tribunal to find that there is a need for an order and that the needs of the person cannot be met by other means less restrictive of the person's freedom of decisions and action before an order can be made.
In the present case, the represented person is dependent on others for the management of aspects of her life. Many of her needs are met through the work of and care provided by her carers. These needs include the provision of medical and other forms of care, her social and recreational needs, and her regular contact with her mother. Despite this, there remain some needs, which cannot be met without the formal appointment of a guardian and an administrator.

Need for a Guardian

Accommodation

The submission made by the Public Advocate that there is no need for the appointment of a guardian to determine accommodation questions is accepted. The move of the represented person to her current appropriate accommodation was achieved without the appointment of a guardian. There are no plans to move the represented person from this accommodation.

Consent to Medical Treatment

The submission that the represented person's medical care is optimal does not address the need for lawful authority in someone to give consent to that treatment.
The role played by the health professionals is to provide treatment and care to the represented person. It is accepted that the team involved in the care of the represented person provide a high level of care to her, but this is not relevant to the question of the need for consent to that treatment. The treatment is not of a type that would bring it within the meaning of "urgent treatment" as defined in the Act (s 119(4)) and so s 119(1a) does not apply.
The Full Board of the Guardianship and Administration Board considered the position of treatment of a person unable to consent in Re BCB; Application for Guardianship Order, (2002) SR (WA) 338 (BCB).
The approach to the law taken by the Full Board in BCB in respect of the issue of consent was affirmed in a more recent decision of the Board Re BTO (Unreported decision of the Full Board delivered 14 October 2004 (Hon Justice ML Barker, Presiding, Dr A McCutcheon, Member and Ms F Child, Member). In the reasons for decision in that case the Full Board referred to the earlier decision:
"This issue was addressed in Re BCB; Application for a Guardianship Order, unreported decision of the Full Board delivered 24 May 2002 (Mr K Chapman, President, Mrs P Eldred, Deputy President and Dr G Hamilton, Member) and we need not on this occasion revisit it. In short, the Board there noted that the English House of Lords in Re F (Mental Patient: Sterilization) [1990] 2 AC 1, recognised that in certain situations a medical practitioner may act in accordance with a "principle of necessity" and treat a patient without obtaining the consent of that patient. However, some doubt about the recognition of such a principle under Australian law was expressed in some of the judgments in the High Court decision in the case colloquially known as Marion's case (1992) 175 CLR 218. As a result, in Re BCB the Board thought it unwise to conclude that the general law applicable in Western Australia presently permitted a medical practitioner or any other health professional to provide treatment without a patient's consent. With this approach to the law we respectfully agree."
In that case, the Full Board considered the provisions of s 119 of the Act, which as referred to above provides a statutory regime by which consent can usually be obtained from persons in the hierarchy set out in the section for treatment of a person unable to consent to it.
In the present case, the mother of the represented person would be the first and only person in the hierarchy of persons who could give consent under s 119 to medical treatment of the represented person. The evidence provided at the hearing is that while the mother of the represented person remains interested and concerned in the care of her daughter, she is unable by reason of her own disability, of understanding the nature of the treatment provided to the represented person. She is herself a resident of Casson Homes. The evidence of the applicant is accepted in this regard.
There are no other known relatives or persons who provide unpaid care to the represented person or persons who maintain a close personal relationship with the represented person, so it appears that there is no person who falls within any of the categories of persons who could give consent as set out in the hierarchy of s 119(3) unless a guardian were to be appointed. In relation to the need for someone with authority to consent to medical treatment of the represented person, there is no lawful less restrictive alternative to the appointment of a guardian.
This was in fact the position in Re BCB (supra) where the Full Board having found that there was no one in the statutory hierarchy to give consent, then stated:
"as there is no person clothed with the necessary legal authority to make decisions on his behalf in relation to his health and personal wellbeing, we consider there is a need to appoint a guardian for the represented person within the meaning of s 43(1) subsection (3)." [at 348]
The Full Board considered that a guardian would:
"provide a view and decision independent of and external to the nursing home and the medical practitioner. Having concluded that there is no lawful authority for this treatment which involves the administration of a complex combination of drugs, in our view there is no least restrictive alternative available to deal with his ongoing medical treatment other than the appointment of a guardian."

Consent to Psychiatric Treatment

In respect of the submission of the Public Advocate that the scope of authority of a guardian may not include consent to psychiatric treatment of the represented person, this is not accepted.
The interpretation section of the Act (s 3) provides as follows:
"treatment means any medical, surgical, dental or related treatment or care that may lawfully be provided to a patient with the patient's consent or the consent of any person authorised by law to consent on behalf of the patient, but does not include the procedures referred to in Division 3 of Part 5."
The Full Board has considered in previous decisions that the potential scope of the meaning of "treatment" under the Act is very wide. In Re BTO (supra) the general statements of the Board on the potential scope of the definition of "treatment" was affirmed and the Full Board considered that:
"[T]he concept of treatment adopted by the Act appears to include not only medical or surgical procedures designed actively to treat a persons illness or condition, but also the provision of care, any form of oversight of a person's condition and medical advice as to by what measures it may best be managed, the prescription of courses of medication and the like."
That case dealt with end of life decision‑making but affirms the wide scope of the meaning of "treatment" in the Act.
Although the submission was not expanded by the Public Advocate during the hearing, it is taken to mean that since the Mental Health Act 1996 (WA) (MHA) is the specific act, intended to regulate the psychiatric treatment of persons incapable of giving consent, that the MHA rather than the Guardianship and Administration Act 1990 (WA) would apply to psychiatric care delivered to the represented person, as she is unable to consent to that treatment. Whether the represented person meets the statutory requirements for involuntary treatment under the MHA was not addressed in the hearing.
The real question is whether all forms of psychiatric care to persons incapable of consenting to that treatment must be delivered under the provisions of the MHA. It is noted that there is no evidence before the Tribunal that the represented person has ever had contact with Mental Health Services and the position at present is that she is currently receiving psychiatric treatment without the MHA being invoked as is the case for most patients treated for mental illness.
Whether a guardian may give consent to psychiatric treatment of a represented person may raise policy concerns for the appropriate intersection of the MHA and the Guardianship and Administration Act 1990 (WA). However, based on the facts before the Tribunal, I consider that there is nothing in the definition of treatment in the Act, as it is currently understood, that precludes a guardian from giving consent to psychiatric treatment.

Psychiatric treatment or chemical restraint

The evidence regarding the medications administered to the represented person, and whether they constitute an attempt to modify her behaviour or whether they are treatment of a diagnosed psychiatric condition is not entirely satisfactory.
The applicant who has worked with the represented person for many years and who impressed the Tribunal as someone closely concerned for her welfare, considered the medication sodium valporate to be used for the purposes of behavioural management. The consultant psychiatrist makes his position clear by his response to the Public Advocate's questionnaire: he is treating a diagnosed condition in the represented person which is the underlying cause of her episodic aggression.
In Re BCB (supra) at 347, the Board said "it may be arguable that a medical practitioner may prescribe drugs for a particular person to control inappropriate behaviour relating to an underlying medical condition and when the drug is being used for that purpose, it is treatment".
The evidence of the general practitioner is difficult to assess, as in his report he states that the medications are not chemical restraint but this is contrary to his oral evidence before the Tribunal in the second hearing.
In determining whether or not the medications are chemical restraint or treatment, greater weight can be placed on the report of the psychiatrist who is an expert in this field and since his assessment of the represented person and report of his findings is the most up to date evidence before the Tribunal.
If, after further discussions with all the service providers this position is found not to be the case, the guardian may wish to seek review of the order to include the authority to consent to chemical restraint of the represented person if she considers it is in the best interests of the represented person to do so.
As there is no one in the life of the represented person who is proposed as guardian or can act as guardian the Tribunal must appoint the Public Advocate as her limited guardian with the function to consent to treatment.

Need for an administrator

Although it was submitted by the Public Advocate that the less formal arrangements in place for the management for the represented person's estate represent a less restrictive alternative, this is not accepted by the Tribunal. The Tribunal considers there is a need for the appointment of an administrator to provide independent and accountable management of the estate. The need for independence and accountability cannot be met in a less formal way.
The nursing home in which the represented person lives and who it is proposed will manage her estate, is a private nursing home. It was submitted and it is accepted that the nursing home is subject to a number of assessment and monitoring processes of the care standards provided to residents by both the Commonwealth and State authorities.
These processes for monitoring of the care standards provided to residents do not provide a mechanism by which the represented person's estate can be managed. The processes will not monitor the management of the represented person's funds. In the process proposed there is no external accountability and the offer by the administrator that the organisation "provide regular copies of bank statements" does not assist that process as the Tribunal has no mechanism by which to assess and examine those statements. Transparent accountability for the management of the estate will not occur other than by the appointment of an administrator.
Since there is no one in the life of the represented person who can act as her administrator, the administrator of last resort, the Public Trustee, is appointed to provide independent management of her estate.

Orders

The Public Trustee was appointed plenary administrator for the estate of LDT with review of the order in five years. The Public Advocate is appointed limited guardian for the purposes of consenting to treatment or health care of the represented person with review of the order in five years.
I certify that this and the preceding [67] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER