P
[2017] WASAT 54
•22 MARCH 2017
P [2017] WASAT 54
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 54 | |
| 28/03/2017 | |||
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:620/2016 | 30 JUNE 2016 | |
| Coram: | MS H LESLIE (MEMBER) | 22/03/17 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Public Trustee appointed as plenary administrator Public Advocate appointed limited guardian with authority to make accommodation or senior decisions | ||
| B | |||
| PDF Version |
| Parties: | P |
Catchwords: | Guardianship Need for guardianship Less restrictive alternative Accommodation Meaning of 'treatment' Community Treatment Order CTO Best interests |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 4(c), s 4(2), s 4(2)(a), s 43, s 43(1)(b), s 43(1)(c), s 64 Mental Health Act 2014 (WA), s 17, s 18, s 25(2), s 25(2)(e), s 115, s 117 Mental Health Bill 2013 (WA) |
Case References: | MM v Mental Health Review Board (Unreported, CIV 2235 of 1998, Library No 990093) |
Summary | On review of orders appointing the Public Advocate and the Public Trustee as guardian and administrator, the Tribunal determined that the represented person, who was at the time of the application an involuntary patient in an approved hospital, continued to be a person whose mental illness caused him to be a person for whom orders could be made for both guardianship and administration. Although relatively simple in nature, his financial affairs continued to require oversight and management. Given his fluctuating mental health, the Tribunal determined that he was in need of a decisionmaker to make decisions about his accommodation and the services and supports to which he required access. At the time that the application was made, the principle issue relating to guardianship was, whether or not a Community Treatment Order (CTO) made under the Mental Health Act 2014 (WA) could, or should, be used to compel the represented person to reside in a particular accommodation and thus, whether such a CTO was a less restrictive alternative to a guardianship order. By the time that the review hearing was completed, the represented person had been released from hospital into community accommodation on a CTO, which did not contain any conditions or restrictions regarding where he lived. The Tribunal found that there was in place no less restrictive alternative to the making of a guardianship order, there being in place no CTO that mandated accommodation. The Tribunal expressed the view that in appropriate circumstances, accommodation can fall within 'treatment' under the Mental Health Act 2014 (WA) but that decisions regarding accommodation and support services are generally best provided for under the auspices of a guardianship order, albeit with the informed input of mental health clinical teams who are responsible for patient care. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : P [2017] WASAT 54 MEMBER : MS H LESLIE (MEMBER) HEARD : 30 JUNE 2016 DELIVERED : 22 MARCH 2017 PUBLISHED : 28 MARCH 2017 FILE NO/S : GAA 620 of 2016
- GAA 2398 of 2016
- Represented Person
Catchwords:
Guardianship - Need for guardianship - Less restrictive alternative - Accommodation - Meaning of 'treatment' - Community Treatment Order - CTO - Best interests
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(c), s 4(2), s 4(2)(a), s 43, s 43(1)(b), s 43(1)(c), s 64
Mental Health Act 2014 (WA), s 17, s 18, s 25(2), s 25(2)(e), s 115, s 117
Mental Health Bill 2013 (WA)
Result:
Public Trustee appointed as plenary administrator
Public Advocate appointed limited guardian with authority to make accommodation or senior decisions
Summary of Tribunal's decision:
On review of orders appointing the Public Advocate and the Public Trustee as guardian and administrator, the Tribunal determined that the represented person, who was at the time of the application an involuntary patient in an approved hospital, continued to be a person whose mental illness caused him to be a person for whom orders could be made for both guardianship and administration. Although relatively simple in nature, his financial affairs continued to require oversight and management. Given his fluctuating mental health, the Tribunal determined that he was in need of a decisionmaker to make decisions about his accommodation and the services and supports to which he required access. At the time that the application was made, the principle issue relating to guardianship was, whether or not a Community Treatment Order (CTO) made under the Mental Health Act 2014 (WA) could, or should, be used to compel the represented person to reside in a particular accommodation and thus, whether such a CTO was a less restrictive alternative to a guardianship order. By the time that the review hearing was completed, the represented person had been released from hospital into community accommodation on a CTO, which did not contain any conditions or restrictions regarding where he lived. The Tribunal found that there was in place no less restrictive alternative to the making of a guardianship order, there being in place no CTO that mandated accommodation. The Tribunal expressed the view that in appropriate circumstances, accommodation can fall within 'treatment' under the Mental Health Act 2014 (WA) but that decisions regarding accommodation and support services are generally best provided for under the auspices of a guardianship order, albeit with the informed input of mental health clinical teams who are responsible for patient care.
Category: B
Representation:
Counsel:
Represented Person : Mr M Adam
Solicitors:
Represented Person : Mental Health Law Centre
Case(s) referred to in decision(s):
MM v Mental Health Review Board (Unreported, CIV 2235 of 1998, Library No 990093)
Introduction
1 P is a 35-year-old man who suffers from a mental illness.
Orders prior to 2 March 2017
2 P first came to the attention of the Tribunal in 2010.
3 On 20 July 2010, having made a finding of incapacity, the Tribunal appointed the Public Trustee as P's plenary administrator with certain directions regarding the management of part of his estate. The order was made for 12 months.
4 Upon review, on 27 July 2011, the order was confirmed and the direction modified. A two year review period was set.
5 Upon review, on 9 September 2013, the order was confirmed again and the direction modified further. An order authorising the expending of up to $200 per annum on gifts was authorised and the matter was listed for review after one year.
6 On 20 August 2014, upon review, the Tribunal again confirmed the Public Trustee's plenary appointment, made adjustments to the direction and the gifting order and set a two year review period.
The application
7 At a time, in November 2015, when he was an inpatient in a mental health unit (JH), an application for a guardianship order for P was made by his social worker K on behalf of the treating team at JH. The application sought the appointment of a guardian to make decisions for P in relation to his accommodation, medical treatment and access to services. In the application, it was claimed that P's delusions 'are so severe that he cannot make safe decisions regarding his health and living arrangements'. It was said that he 'is chronically delusional and somewhat treatment resistant' and that he 'has now ceased eating all foods as he believes that he is allergic to everything'.
8 Following a series of adjournments for a variety of reasons, the matter was heard by the Tribunal on 8 February 2016 and at that time the Public Advocate was appointed as limited guardian for P with authority to make decisions regarding P's accommodation and support services. Directions were made seeking input from the Public Advocate and the Chief Psychiatrist of Western Australia and from P's legal representative, M (from the Mental Health Law Centre), on behalf of P on the following questions (the questions):
a) Whether the definition of 'treatment' in the Mental Health Act 2014 (WA) (MH Act) allows for a Community Treatment Order (CTO) to be used as a less restrictive alternative to the making of a guardianship order for the making of decisions regarding accommodation and support services for an involuntary community patient under the MH Act; and
b) Whether there are any specific reasons why it is in the best interests of an involuntary community patient that such decisions be made under a guardianship order rather than a CTO or vice versa.
9 A short review hearing was set.
10 By the time of the listed hearing, the Administration order made on 20 August 2014 was due for review and so that matter was listed at the same time as the guardianship review.
The applicable principles
11 Section 4 of the Guardianship and Administration Act 1990 (WA) (GA Act) provides that:
(1) In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2) The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(3) Every person shall be presumed to be capable of -
(a) looking after his own health and safety;
(b) making reasonable judgments in respect of matters relating to his person;
(c) managing his own affairs; and
(d) making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4) A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
…
The hearing
12 The matter ultimately came on for further hearing on 30 June 2016 and, with provision made by direction for the State Solicitor (representing the Public Advocate) to file further submissions in reply to the submissions lodged on behalf of P within 14 days, the decision was reserved.
13 The hearing was attended by P and his legal representative, M, the Public Advocate's delegate (D) and her legal representative J (from the State Solicitor's Office (SSO)), the delegated guardian S, P's community mental health case manager G, and by telephone, E, who is the manager at the accommodation hostel where P now resides.
14 The Tribunal had the benefit of the following for the hearing:
1) a doctor's guide from P's psychiatrist Dr T dated 11 November 2015 together with an attached letter of the same date from Dr T;
2) a doctor's guide dated 5 November 2015 from Dr A, ahospital medical officer at JH who has been involved inP's care;
3) a social worker guide from K, a social worker/case manager dated 11 November 2015;
4) a primary care guide from E dated 26 May 2016;
5) two reports from the Public Trustee regarding P's current financial position, initially and of 18 November 2016 and an updated report of 23 June 2016;
6) a report from the delegated guardian regarding P's current personal situation dated 26 May 2016;
7) submissions regarding the questions received from the Public Advocate prepared by the SSO;
8) a submission regarding the questions in the form of aletter received from the Dr NG; and
9) a submission regarding the questions on behalf of P prepared by M.
15 At the hearing, evidence was given by G and E updating on P's circumstances. Both were questioned by the Tribunal, by M and by J. P also made some comments and asked some questions. S spoke to her report.
16 M and S both spoke to their submissions.
17 The greater portion of the hearing was devoted to issues relating to guardianship.
18 Following the completion of the hearing, the further submissions from the SSO were received in line with the direction issued.
The Issues
Capacity
19 Section 43 of the GA Act provides that
(1) Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40
(a) has attained the age of 18 years;
(b) is
(i) incapable of looking after his own health and safety;
(ii) unable to make reasonable judgments in respect of matters relating to his person; or
(iii) in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and
(c) is in need of a guardian,
the Tribunal may by order declare the person to be in need of a guardian, and if it does so shall appoint
(d) a person to be a plenary guardian or a limited guardian and, if it is expedient, a person to be an alternate guardian; or
(e) persons to be joint plenary guardians or joint limited guardians,
as the case may require, of the person in respect of whom the application is made.
(2) Where under subsection (1) the State Administrative Tribunal declares that a person is in need of a guardian, it shall also declare the matter or matters set out in paragraph (b) of that subsection of which it is satisfied.
…
20 Section 64 of the GA Act provides that:
(1) Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40
(a) 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
(b) is in need of an administrator of his estate,
the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint
(c) a person to be the administrator; or
(d) persons to be joint administrators,
as the case may require, of the estate of the person in respect of whom the application is made.
…
21 There was little argument in the hearing in relation to P's alleged incapacity other than as perhaps might be interpolated from P's comments. I do not propose to set out in detail the content of the various reports in full. I incorporate them by reference. To the extent that P's evidence may be seen as contradicting the clinical evidence, I reject his evidence and prefer that of the clinicians and allied health staff involved all of which was consistent and which I accept as accurate and credible.
22 The medical evidence can be summarised as follows. P suffers from chronic treatment resistant schizophrenia. He is significantly affected by this disorder first diagnosed in 2000. He also has delusions of various types including somatic complaints which are consistently found to have no organic basis. He is cognitively disorganised and can become agitated very quickly. He is constantly preoccupied with allergies that he may have. This frequently has an impact on his health, including causing him to limit his intake of food and drink at times. He has anxiety and paranoia symptoms. His anxiety and inability to postpone his delusionally driven needs being met appear to underlie his erratic behaviour. His insight is minimal.
23 P disputes his illness and genuinely believes that the thinking described as delusional by his doctors is grounded in reality.
24 There is, in my view, sufficient evidence in the form of the medical and other clinical reports upon which to base a finding that P meets all of the criteria under the legislation for the making of a guardianship order and an administration order. The current and previous medical reports clearly indicate that P suffers from a serious mental illness which is chronic and which affects his decisions in relation to his finances, accommodation and his support needs. G's evidence as to P's current presentation supports this as a continuing position, as does E's. P's condition fluctuates and at times he presents as significantly more unwell than at other times. I am satisfied, however, that even when at his best, his mental illness and its symptoms prevent him from looking after his own health and safety and from making reasonable judgments in relation to his person and his finances.
Finding
25 I am satisfied that the presumption of capacity has been displaced in this case. In my view P meets all three of the criteria in s 43(1)(b) of the GA Act for the making of a guardianship order and the criteria for the making of an administration order.
Need for guardianship
26 When the existing guardianship order was made in February 2016, P was still in hospital in JH. There was at the time an issue that arose as to whether or not arrangements for his accommodation and care out of hospital could be made using the mechanism of the CTO - by setting conditions in the CTO as to the place in which he was to reside and the services that he was required to accept by way of support - thereby avoiding the need for a guardianship order.
27 It is common ground that by the time of the final hearing, P had been discharged from JH to a hostel facility managed by E and had been living there for about four months. He had been discharged on a CTO so as to facilitate the provision to him of mental health treatment compulsorily under the MH Act. The evidence was that, though he had settled fairly well and was prepared to stay 'for the moment', P was unhappy about living at the current hostel and talked of other options for accommodation (such as his own unit or house) and other locations where he'd like to live. He was receiving followup community mental health treatment from G through the clinic team for the catchment covering the area where he resides.
28 In the report provided, Dr T describes P as 'unrealistic about his selfcare capacity, where he can live and his budget'. He goes on 'There is a strong clinical case to provide consistent structure to help [P]. This is likely to necessitate living in supported recovery orientated accommodation which [P] may resist. At the very least there will need to be a highly structured care plan with a capacity to direct as necessary to help [P] contain the malign effects of his psychotic beliefs on his judgment'.
29 There was little argument about this at the hearing other than from P himself. He clearly disagrees with Dr T who he claimed had rarely seen him. He agreed he didn't like where he was and wanted 'his own space – a unit or a house' but also said he was prepared to 'go along with what they want'.
30 G's evidence was to the effect that stable accommodation is a crucial part of maintaining P's overall well-being; that P is compliant with his medication and his follow-up and that the team and P were working constructively at present but that it will take time. He expressed a concern that, as P does not want to live in the area where he is currently residing, he might decide to leave and that, though that 'might work out alright, it could be disastrous and set P back years'. He expressed the view that it would take some time to get things back on track if that were to happen and that a stable framework for P's recovery is critical. He described the current situation with P as being a 'reasonable partnership', such that the supervising psychiatrist feels that, unless things deteriorate, when P's CTO finishes in a couple of months, the treating team will not seek to renew it and will work with P as a voluntary patient. If he moved out of the community team's catchment, there would also be the complexities of handing care over to a new team and the relationship building having to start again.
Finding:
31 Although P currently has stable accommodation and appropriate support from his mental health team, in my view, this situation is fragile and P's views fluctuate. Although I acknowledge that P is currently working with his treating team cooperatively, he has articulated a desire for change which needs to be considered. I accept the evidence of G that this stability for P and consistency in his support is critical and in P's best interests at the present time. I do not think that P's assurances are, at this stage, reliable enough to preserve the current stable situation.
32 I am satisfied in terms of s 43(1)(c) of the GA Act that, on the basis of the evidence, there is a need for a decisionmaker for P to oversee his accommodation situation and to manage and to make decisions regarding any potential change and to oversee and procure support services that may be needed to assist P in his life and in his recovery.
Further issues less restrictive alternative (s 4(c) of the GA Act) and best interests (s 4(2)(a) of the GA Act)
33 The central questions for this case are:
1) whether to achieve appropriate accommodation and support decisions for P, there is a need for a guardianship order, or whether there are means less restrictive than the making of an order which will enable appropriate decisions for P to be made regarding these matters; and
2) whether for other reasons it is not in P's best interests for a guardianship order to be made.
34 These issues arose following a submission made at the original hearing when P was still an inpatient in JH. In response to the application for a guardianship order, M, on behalf of P, firstly submitted that a guardianship order was unnecessary as it was likely that P would be discharged from hospital on a CTO and that conditions could be inserted in the CTO specifying where P was to live and nominating the follow-up he was required to have and the support services with whom he was required to interact. M's submission was that the issues being dealt with in this way was less restrictive in that a guardianship order was not then required.
35 His second submission was that the issues being dealt with in this way was positively in P's best interests as there was a risk that the making of a guardianship order could deprive P of rights under the MH Act.
Less restrictive alternative (s 4 of the GA Act)
36 The GA Act provides that:
A guardianship or administration order shall not be made if the needs of the person in respect of whom the application for such an order is made could, in the view of the [Tribunal] be met by other means less restrictive of the persons' freedom of decision and action [than by the appointing of a guardian[.]
37 The CTO document was not put before the Tribunal. However, this matter has been preceded with on the basis that the CTO made upon P's discharge from JH does not in fact contain conditions that reflect the matters referred to by M in the first limb of his submission.
38 CTOs can only be completed by the patient's treating psychiatrist who must, in completing the document, form a view as to the appropriate treatment plan and any conditions to be included in the CTO. At the time of the CTO being made, a guardianship order covering accommodation and support services was in place and these proceedings for periodic review of that order were on foot although not complete. It appears that the current treating psychiatrist was aware of these matters but may have been approached regarding the use of CTO conditions. She appears to have taken the view that conditions as to accommodation are inappropriate in a CTO. It is understood that the treating psychiatrist relied on advice from Dr NG in this regard.
39 The position is therefore that, other than by reference to the guardian, there is no formal constraint in place regarding P's care and/or accommodation. In my view, one is needed ongoing in the form of a further guardianship order, there being no CTO condition achieving such constraint in fact in place.
40 M puts the alternative argument that, because of P's current cooperation with his treating team, even on the basis of the CTO as it is understood to stand, this informal arrangement that relies on P's compliance with the accommodation and services in place, could operate as a satisfactory less restrictive alternative to a guardianship order.
41 I reject that argument. In my view, at best, P is ambivalent regarding his current accommodation. At worst, he is actively opposed to it. I accept that his views fluctuate. I also accept the evidence of G that stable accommodation is a crucial part of P's treatment. I do not accept that there is a sufficient likelihood of P reliably complying with the recommendations of the treating team as to his accommodation for any sort of informal agreement to stand alone. I do not accept that an appropriate way of ensuring that P maintains a stable accommodation is to accept his periodic assurances in this regard. Indeed, I think that it places an unfair burden on a person with his severity of illness and his clinical symptoms. Despite the submissions of his counsel, P, to his credit in a sense, indicated frankly and openly what his preferences are. They are clearly variable. Given his condition and given the vital nature of stability in his recovery, in my view a formal order is required appointing a guardian, there currently being no CTO conditions under the MH Act that could provide any sort of constraint on P. In my view, as previously, the guardian should have authority to make decisions regarding where and with whom P should live and regarding the sorts of services that are provided to him to ensure his proper care and support in the community. The Public Advocate is the only proposed guardian. In my view, in any event, it would be in P's best interests to have a guardian who is independent of his family and of those providing his care and treatment as previously.
Further consideration
42 CTOs and the conditions can be readily changed. As this question is one that has, to the Tribunal's knowledge, vexed treating teams and patient advocates alike for some years, given the basis upon which it is suggested that the author of the CTO refrained from inserting any accommodation condition, I propose to address the submissions made to the Tribunal by the various parties on the question whether a CTO with accommodation directions in it, could operate as a less restrictive alternative to a guardianship order albeit that such a determination is not necessary in this case.
M's submissions
43 M relied on the decision of Scott J in MM v Mental Health Review Board (Unreported, CIV 2235 of 1998, Library No 990093), as authority for the proposition that the provision of accommodation and support can form part of 'treatment' under the MH Act and thus be designated as conditions in the CTO treatment plan. In that case, in the context of an argument about whether the Mental Health Review Board (Board) was in error in determining that the provision of 'supervision and a safe environment in which to live' constituted part of treatment, His Honour said 'In my opinion, the word "treatment" should be interpreted widely in the context of this statute in order not to subvert the intent and purpose of the provision'. He found 'that part of the "treatment" of the appellant's condition was her management during the term of her illness'. He went on to find that the Board was not in error in its finding.
44 M's submission appears to me in essence to be that, in the context of his ongoing treatment for mental illness, a direction or condition contained in a CTO as part of the stated treatment plan to the effect that P reside in a certain place and accept certain services constitutes a similar sort of provision, being one essentially mandating supervision and a supported and safe environment for P in the community at least for the life of the CTO.
45 He argues that the definition of 'treatment' in the MH Act is wide enough to include such matters and the sections that relate to the content of CTOs allow for it.
46 The following matters can be distilled from M's written submission:
1) 'Treatment' under the MH Act remains a wide rather than a narrow concept;
2) In accordance with the ordinary meaning of the words, 'psychosocial intervention' where it appears in the definition of treatment in the MH Act can include decisions on social conditions/factors relating to mental health, living arrangements, accommodation and support services;
3) In P's particular case, decisions regarding such matters should be considered as 'treatment';
4) The evidence supports the conclusion that P's treating team and his guardian hold the opinion that he requires supported accommodation due to the anxiety and emotional dysregulation that comes from his delusions re allergies, his relapse of paranoid schizophrenia and the delusional and acute deterioration of his mental state; and
5) The hostel where P resides provides residential care exclusively for people with a diagnosed mental illness. The services provided by the hostel include:
a) clinical care and medication management overseen by the facility manager;
b) psychiatric support in conjunction with the community mental health team; and
c) trained personal care assistance to assist residents with daily living.
6) The supported hostel accommodation provided to P (that the treating team wishes to maintain) is intended to:
a) prevent a deterioration in P's paranoid schizophrenia, with the facility manager overseeing his compliance with medication;
b) prevent a deterioration in P's mental health by providing appropriate psychiatric support with the assistance of the community mental health team; and
c) alleviate a condition of P's mental illness (weight loss) by ensuring that he has assistance and support following an appropriate diet.
7) The Board has, though perhaps obiter dicta, made comment in one of P's involuntary status reviews supporting the view that in 'very special circumstances' where the 'only basis on which the treating team felt confident that the person [could succeed in living] in the community', a CTO might be able to include an order about accommodation;
8) This interpretation of 'treatment' achieves the objectives and purposes of the new MH Act. Such an interpretation would allow for directions or orders to be made more broadly, covering things such as accommodation, fitness to work and to drive, but, in the end allowing for less restrictive treatment for patients in that people could return to the community rather than having to remain in hospital; and
9) M conceded that the decisions regarding supported accommodation for P potentially fall under both the MH and the GA Acts and that each case must be decided on its own facts.
The Chief Psychiatrist's submission
47 Dr NG, in his written submission to the Tribunal, expressed the view that:
decisions regarding accommodation and support services are, generally, best provided for under the auspices of a Guardianship Order. Opportunity should exist to consider rare exceptions to this general rule. (Tribunal emphasis added)
48 He further expressed the view that:
the term 'treatment' in relation to the Mental Health Act 2014 remains a wide rather than a narrow concept.
49 He sought to distinguish between an inpatient and a communitybased patient. In the context of inpatients he said:
in an inpatient setting, the milieu is particularly significant in the therapy. Thus a patient on an inpatient involuntary treatment order may not have commenced pharmacotherapy but may be receiving a mixture of, for example, initial supportive work from clinical staff and the benefit of a structured, containing and therapeutic environment, notwithstanding that mental health wards may at times be noisy, and are not homelike environments. In this situation, the immediate environment is part of the treatment paradigms. With an inpatient treatment order, the treatment is also legally linked with a specific geographic and therapeutic location.
50 In the context of community-based patients, Dr NG said:
while the residential milieu for an individual within the community is also acknowledged as very important, a CTO implies that a person has greater freedom than with an inpatient treatment order to move about in the community. The CTO is not inherently linked to a specific location, except for the provision of the specified treatment itself, which is generally linked to an explicit clinical service or provider[.]
Notwithstanding there may be complex situations where it is very difficult to distract out the risk associated with certain residential accommodation or cohabitants and the duty to prevent deterioration in mental health status, compelling a person to live in a certain place or with a certain person sits slightly uncomfortably outside of the ethical perception of their role for most clinicians. Enforcing such a direction would prove exceptionally difficult for a multitude of reasons. Readmitting a person to hospital involuntarily purely due to not residing at the right address would seem to me, and most laypersons I would imagine, as heavyhanded and more like a police intervention than a therapeutic one. There is a significant public perception issue regarding psychiatrists being able to control aspects of a person's life other than mental health treatment in such a move would do little to help public perceptions about the therapeutic nature of mental health care[.]
As a separate issue, if a person's mental health state is clearly deteriorating despite a CTO, and the criteria are met for involuntary inpatient treatment, and it happens that a person's living environment is contributing to the deterioration in mental state, there would be clear grounds to revoke the CTO and invoke in voluntary inpatient treatment. This is different to having a CTO as a legal direction for accommodation and support services.
Having a guardian appointed identifies an independent person regarding capacity, rather than the psychiatrist always having to be both agent of capacity and therapist. While this might be a frequent joint role for a psychiatrist in authorised [inpatient] settings it is more appropriate in the community for these roles to be separate, if possible. Practically, this allows a more inherently fair process with expected negotiation among the appointed guardian, psychiatrist, carers and the person themselves when there are complex situations arising regarding accommodation and broader support services.
Despite this, there may be rare circumstances of such complexity where the social environment is the critical and primary therapeutic tool for an involuntary [CTO] patient. These should be considered on an individual basis, and not drive a more consistent approach. (Tribunal emphasis added)
The Public Advocate's submission
51 J spoke to the written submission lodged on behalf of the Public Advocate. The following salient points can be drawn from the written submission:
1) The MH Act does not expressly provide that a CTO may direct where a patient is to live for what support services he or she is to access;
2) Treatment in the MH Act is defined as 'the provision of apsychiatric, medical, psychological or psychosocial intervention intended (whether alone or in combination with one or more other therapeutic interventions) to alleviate or prevent the deterioration of a mental illness or a condition that is a consequence of a mental illness'. (Curiously, the submission suggests that this definition does not extend to the provision of accommodation orsupport services to a patient, but it does not address the question of whether such matters could come within thenotion of 'a psychosocial intervention');
3) It is arguable that a CTO can include terms about matters incidental to the patient's treatment where those terms are reasonably necessary to achieve the objects and purposes of the MH Act;
4) Section 117 of the MH Act (requiring inclusion in the CTO of details as to where and when treatment is to be provided) could not be used to direct where a person should reside);
5) Section 115 of the MH Act provides a list of terms to be included in a CTO but the list is not exhaustive. Additional terms are therefore contemplated and one such term might be where a patient is to reside while receiving treatment. '[I]t is consistent with the objects of the Act for a CTO to include reasonable terms that will provide the best possible treatment and care for the patient'. (It is submitted that there is support for this reading of the MH Act in the Explanatory Memorandum to the Mental Health Bill 2013 which explains (at page 36) that: '[t]he list of terms in a CTO listed in clause 115 is nonexhaustive , however it is intended that the terms be incidental to the patient's treatment, care and support. This may extend to the patient being treated for aparticular general health condition, or where the person must reside');
6) However, the terms of the legislation should be construed narrowly given its nature and any attempt to widen the scope of the s 115 of the MH Act to include thedetermining of where someone might live may be inconsistent with the scheme of the MH Act and the obligation to construe its provision narrowly; and
7) The circumstances in which it will be open for apsychiatrist to include terms in a CTO relating to where a patient must reside or the support services the patient must access, will be limited to where it can be shown that such terms are necessary for the effective treatment of the patient for the term of the treatment period.
Commentary
52 The following principles seem to me to emerge from a consideration of those submissions:
1) The term ‘treatment' under the MH Act is a wide rather than a narrow concept particularly given the inclusion in the new Act's definition of 'psychosocial interventions';
2) Accommodation can in some circumstances fall within that definition of 'treatment'. This will only be in rare circumstances of such complexity that the social environment is the critical and primary therapeutic tool for the treatment and management of a patient's illness in the community, and where it can be shown that such aterm is necessary for the effective treatment of thepatient for the term of the CTO. In most cases, apatient's management and treatment will not be inherently linked to a specific accommodation location;
3) There will be cases where it is very difficult to distil the risk of certain sorts of accommodation to a patient's stability and recovery. Options for accommodation inthecommunity for the mentally ill are rarely optimal for recovery;
4) There is a legitimate place for CTOs where accommodation is not mandated and use is made of CTO revocation and the return of the patient to hospital for the management of relapse or deteriorating symptoms, rather than a prescriptive use of accommodation designation within CTOs;
5) Decisions regarding accommodation and support services are generally best provided for under the auspices of aguardianship order, for the reasons explained by Dr NG (which I endorse), albeit with the informed input of mental health clinical teams who are responsible for patient care; and
6) There will be rare exceptions to this general rule, however, as referred to in 2 above, where it is legitimate to designate specific accommodation within the terms of aCTO.
Best interests (s 4(2) of the GA Act)
53 An issue was also raised by M as to whether the making of a guardianship order prevented P from being made an involuntary patient under the MH Act and thus would have the effect of depriving him of the protections available to involuntary patients under that Act, to his detriment. M's submission was that it was in P's best interests to have these issues (accommodation and services) dealt with by way of conditions on a CTO rather than by the making of a guardianship order.
54 He submitted that it could be argued that the MH Act be interpreted as meaning that a person for whom informed consent could be given by a substitute decisionmaker could not qualify for involuntary treatment under the MH Act, and was therefore deprived of the rights, particularly rights to review and advocacy, that attach to an involuntary patient under that Act.
55 I reject this argument. To qualify for a CTO, a patient has to lack capacity under s 18 of the MH Act. If a patient lacks capacity, under s 17 of the MH Act, a patient's guardian (either a plenary guardian or a limited guardian with authority to make treatment decisions) can give informed consent to treatment under the MH Act on the patient's behalf. However, in my view that fact does not mean that a patient is thereby disqualified from involuntary status under a CTO. I do not think that subsection (e) of s 25(2) of the MH Act is intended to be read with this in mind. It seems to me that the subsection is directed more at examining whether there are ways of working with the patient, albeit one who lacks full capacity, to see whether collaborative ways of achieving treatment can be found, rather than imposing a CTO. I do not think the intention of the legislature could possibly have been to regard the appointment of a decisionmaker for the patient through a different legal mechanism (namely guardianship), but where the patient's right to make the decision is still taken away, as somehow less restrictive in terms of the patient's freedom of choice regarding treatment than the imposition of a CTO. I do not think a guardianship order for treatment decisions can be regarded as less restrictive in terms of the patient's rights than a CTO. Different, perhaps, but no less restrictive.
56 In any event, in this case, the type of guardianship order that is being proposed would allow a guardian only to consent to accommodation and services, not to any other aspect of treatment. There is no suggestion that all other aspects of P's mental health treatment would be managed other than under the CTO. This would ensure P's rights to review and advocacy under the MH Act. It seems to me that in such a case there is even less appeal in the argument that to make such an order diminishes P's rights under the MH Act. It is to be noted that whatever the length of the guardianship order, P has automatic rights under the GA Act to review the guardian's appointment as often as monthly, through a very simple process.
Need for administration
57 Albeit that his estate and finances are relatively simple, P's financial affairs still require management. As appears from the Public Trustee's report, his accommodation and other expenses must be paid and his personal needs met. He has almost $20,000 savings that need to be managed. Provision for future needs must be considered in conjunction with his guardian.
58 There is no other candidate for the appointment of administrator other than the Public Trustee. P's family are not in a position to become involved, nor in my view, would it be in his best interests for them to be, given the history.
Conclusion
59 For these reasons, orders were made on 2 March 2017 as follows:
GAA 620 of 2016
The Tribunal declares that the represented person, [P];
(a) is incapable of looking after his own health and safety;
(b) is unable to make reasonable judgments in respect of matters relating to his person;
(c) is in need of oversight, care or control in the interests of his own health and safety; and
(d) is in need of a guardian,
and the Tribunal orders that:
The guardianship order dated 8 February 2016 is revoked and an order in the following terms is substituted for it:
1. The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, 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 therepresented 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 thePublic Advocate.
3. The guardianship order is to be reviewed by 2 March 2022.
4. Reasons for the Decision will be delivered orally at 3 pm on Wednesday 22 March 2017.
(i) Parties are not required to attend, or may attend by telephone.
(ii) Audio Transcript of the decision will be made available upon request.
The Tribunal declares that the represented person, [P];
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b) is in need of an administrator of his estate,
and the Tribunal orders that:
The administration order dated 20 August 2014 is confirmed as follows:
1. 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 Act.
2. The administrator is authorised to expend up to a total amount of $350.00 per annum on gifts on behalf of therepresented person.
3. The Public Trustee is directed to provide the represented person with his allowance on a once per week basis.
4. The administration order is to be reviewed by 2 March 2022.
5. Reasons for the Decision will be delivered orally at 3 pm on Wednesday 22 March 2017.
(i) Parties are not required to attend, or may attend by telephone.
(ii) Audio Transcript of the decision will be made available upon request.
I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS H LESLIE, MEMBER
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