P

[2016] WASAT 144

P [2016] WASAT 144

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2016] WASAT 144
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:1094/2016	Heard:	2 JUNE 2016
Coram:	MS H LESLIE (MEMBER)	Delivered:	23/12/16
No of pages:	44	Judgment Part:	1 of 1
Result:	The Public Advocate was reappointed with the previous authorities to make decisions in relation to P's accommodation, his treatment and any service and supports required by him plus with authority to negotiate and consent to or to withhold consent to any restrictions to be imposed on P aimed at preventing or reducing his smoking
Category:	B
PDF Version

Parties:	P
Catchwords:	Guardianship ­ Treatment ­ Meaning of treatment ­ Smoking ­ Smoking restrictions ­ Nature of smoking restrictions ­ Right to hold money ­ Right to access approved allowance ­ Restraint ­ Personal freedom ­ Human rights
Legislation:	Guardianship and Administration Act 1990 (WA), s 3(1), s 4, s 4(2), s 43 Mental Health Act 1996 (WA) Mental Health Act 2014 (WA), s 4, s 6
Case References:	Minister of Health v General Committee of the Royal Midland Counties Home for Incurables at Leamington Spa [1954] 1 All ER 1013 MM v Mental Health Review Board (unreported, WASC, Library No 990093, 4 March 1999) Re Grigor and Chief General Manager of Department of Health and Mental Health Review Board and Mr DWP (1989) 3 VAR 258
Summary	P was a long­term patient in an approved psychiatric hospital. The Public Advocate was his guardian appointed to make decisions regarding his accommodation, his treatment and any service and supports that he needed. P suffered from a serious mental illness which rendered him incapable of making decisions for himself and serious respiratory disease and acquired brain injury from anoxia associated with his breathing difficulties. He was a heavy smoker unwilling to stop smoking. His smoking contributed to his breathing difficulties and his non­compliance with restrictions and illicit smoking behaviours meant that he could not be safely treated with oxygen to assist with his breathing and prevent further hypoxia. The respiratory problems were such that a therapeutic dose of anti­psychotic drugs could not be used to manage his psychiatric symptoms because of the risk of the medication supressing his breathing to an unsafe level. Multiple emergency admissions had been required in near death situations. His respiratory physicians recommended a cessation of smoking. P would not agree to this. A regime of control measures had thus been put in place by the hospital in an endeavour to limit his smoking. P was not happy with the control measures and had, at times, become aggressive and abusive to both staff and other patients in his quest for cigarettes. He had assaulted a staff member and was charged.,His guardian had, at that time, applied for the extension of the guardianship order to authorise the guardian to assist P in navigating the criminal justice system in relation to the assault charge (although that aspect of the order was subsequently revoked after the criminal matter was concluded).,Of its own motion, the Tribunal sought submissions from parties regarding the nature of the decisions involved in the imposition of the smoking control measures.,The Tribunal took the view that such decisions, although made with P's overall health in mind, were not 'treatment decisions' under either the Guardianship and Administration Act 1990 (WA) nor under the Mental Health Act 2014 (WA), but rather were decisions in the nature of restraints on P's freedom that required the augmenting of the guardianship order to add a separate and distinct authority to the guardian to negotiate and consent to such measures.,The guardian was reappointed with the previous authorities in relation to P's accommodation, his treatment and any service and supports required by him plus with authority:,to negotiate with P's treating doctors with regard to, and to consent to, or to withhold consent to the terms of any management or care plan in place regarding P, from time to time, insofar as the provisions of such a plan or any of them seek to impose:,(a) a complete ban on him smoking; or,(b) restrictions on:,(i) the number of tobacco cigarettes that he is allowed to smoke during any defined period; or,(ii) his right to reasonable unescorted ground access where the purpose of the restriction is solely to prevent him smoking; or,(iii) his right to receive and hold funds approved for release to him by way of personal spending money by his administrator (his allowance) where the purpose of the restriction is solely to prevent him spending money unsupervised on cigarettes; or,(iv) his right to utilise funds from his allowance to purchase tobacco cigarettes, whether from individuals or from a shop or canteen; and,(v) any associated matters.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : P [2016] WASAT 144 MEMBER : MS H LESLIE (MEMBER) HEARD : 2 JUNE 2016 DELIVERED : 23 DECEMBER 2016 FILE NO/S : GAA 1094 of 2016 MATTER : P

Represented Person

Catchwords:

Guardianship ­ Treatment ­ Meaning of treatment ­ Smoking ­ Smoking restrictions ­ Nature of smoking restrictions ­ Right to hold money ­ Right to access approved allowance ­ Restraint ­ Personal freedom ­ Human rights

Legislation:

Guardianship and Administration Act 1990 (WA), s 3(1), s 4, s 4(2), s 43

Mental Health Act 1996 (WA)
Mental Health Act 2014 (WA), s 4, s 6

Result:

The Public Advocate was reappointed with the previous authorities to make decisions in relation to P's accommodation, his treatment and any service and supports required by him plus with authority to negotiate and consent to or to withhold consent to any restrictions to be imposed on P aimed at preventing or reducing his smoking

Summary of Tribunal's decision:

P was a long­term patient in an approved psychiatric hospital. The Public Advocate was his guardian appointed to make decisions regarding his accommodation, his treatment and any service and supports that he needed. P suffered from a serious mental illness which rendered him incapable of making decisions for himself and serious respiratory disease and acquired brain injury from anoxia associated with his breathing difficulties. He was a heavy smoker unwilling to stop smoking. His smoking contributed to his breathing difficulties and his non­compliance with restrictions and illicit smoking behaviours meant that he could not be safely treated with oxygen to assist with his breathing and prevent further hypoxia. The respiratory problems were such that a therapeutic dose of anti­psychotic drugs could not be used to manage his psychiatric symptoms because of the risk of the medication supressing his breathing to an unsafe level. Multiple emergency admissions had been required in near death situations. His respiratory physicians recommended a cessation of smoking. P would not agree to this. A regime of control measures had thus been put in place by the hospital in an endeavour to limit his smoking. P was not happy with the control measures and had, at times, become aggressive and abusive to both staff and other patients in his quest for cigarettes. He had assaulted a staff member and was charged.

His guardian had, at that time, applied for the extension of the guardianship order to authorise the guardian to assist P in navigating the criminal justice system in relation to the assault charge (although that aspect of the order was subsequently revoked after the criminal matter was concluded).
Of its own motion, the Tribunal sought submissions from parties regarding the nature of the decisions involved in the imposition of the smoking control measures.
The Tribunal took the view that such decisions, although made with P's overall health in mind, were not 'treatment decisions' under either the Guardianship and Administration Act 1990 (WA) nor under the Mental Health Act 2014 (WA), but rather were decisions in the nature of restraints on P's freedom that required the augmenting of the guardianship order to add a separate and distinct authority to the guardian to negotiate and consent to such measures.
The guardian was reappointed with the previous authorities in relation to P's accommodation, his treatment and any service and supports required by him plus with authority:

to negotiate with P's treating doctors with regard to, and to consent to, or to withhold consent to the terms of any management or care plan in place regarding P, from time to time, insofar as the provisions of such a plan or any of them seek to impose:
(a) a complete ban on him smoking; or
(b) restrictions on:
(i) the number of tobacco cigarettes that he is allowed to smoke during any defined period; or
(ii) his right to reasonable unescorted ground access where the purpose of the restriction is solely to prevent him smoking; or
(iii) his right to receive and hold funds approved for release to him by way of personal spending money by his administrator (his allowance) where the purpose of the restriction is solely to prevent him spending money unsupervised on cigarettes; or
(iv) his right to utilise funds from his allowance to purchase tobacco cigarettes, whether from individuals or from a shop or canteen; and
(v) any associated matters.

Category: B

Representation:

Counsel:

Represented Person : Mr M Adams

Solicitors:

Represented Person : Mental Health Law Centre

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

Minister of Health v General Committee of the Royal Midland Counties Home for Incurables at Leamington Spa [1954] 1 All ER 1013
MM v Mental Health Review Board (unreported, WASC, Library No 990093, 4 March 1999)
Re Grigor and Chief General Manager of Department of Health and Mental Health Review Board and Mr DWP (1989) 3 VAR 258

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1 On 2 June 2016, the Tribunal conducted a hearing to review a guardianship order made on 2 March 2016 for P. At the conclusion of the hearing, the decision on guardianship was reserved. On 28 September 2016, the Tribunal delivered its decision appointing the Public Advocate as P's limited guardian and made incidental orders. The Tribunal now provides its reasons for that decision.

History

2 P is now aged 34. He was born in Malaysia and moved to Australia with his family as a 10­year old. As a 16­year­old, he was diagnosed with a mental illness which has been variously described as bipolar disorder, schizophrenia and schizo­affective disorder. He also suffers badly from asthma. It appears that he moved out of his family's home at the age of approximately 21 and began residing in a unit owned by his family. He was not required to pay rent. By this time, he was smoking cigarettes heavily (80+ per day if given the opportunity). He was also using drugs of various sorts.

The first orders

3 The first application to the Tribunal was made on 18 November 2010 by the treating team at the mental health unit (GH) at which P was then an involuntary inpatient. The application sought an administration order to assist in the management of P's income (a government pension) to purchase necessities and to endeavour to limit his spending on illicit substances. P was said at the time to be unable to control his impulsivity, to be incapable of making financial decisions, and to have no insight into his mental illness and his incapacities.

4 The Tribunal appointed the Public Trustee as limited administrator for a two year period to manage his pension funds, to meet his bills and expenses and his personal needs. The administrator was authorised to liaise with the pension provider regarding P's entitlements.

The second orders

5 A further application was made to the Tribunal on 24 June 2011 by P's mental health treating team seeking a guardianship order. In the period just prior to the application, it appears that P had on two occasions discharged himself against medical advice from a public hospital intensive care unit (SH) where he had been admitted by reason of severe life­threatening respiratory problems. The applicant sought the appointment of a guardian primarily to make decisions about P's medical care, but also raised the issue of his need for community support services and alternative accommodation in view of what were said to be difficulties with his neighbours. In particular, discontent and hostility and some assaultive behaviour were referred to, and a potential need to rehouse P for his personal safety.

6 On 5 July 2011, shortly after the making of the application, P was admitted to GH as an involuntary patient in a psychotic condition. The medical documents lodged with the Tribunal at the time refer to his severe asthma, his heavy smoking and the risk of him dying due to his mismanagement of his physical problems, in particular, his severe life­threatening respiratory condition. Reference is also made to hypoxic incidents secondary to near death situations as a result of his respiratory compromise and resulting decreased capacity from these hypoxic incidents. There is reference to the fact that P is often cyanosed with blue lips, a sign of him not getting enough oxygen to sustain him.

7 On 11 August 2011, the Tribunal appointed the Public Advocate as P's limited guardian with authority to make decisions in relation to his accommodation, his medical treatment and health care, and any services to which he may require access. The order was made as a two year order.

8 At the hearing, there was discussion about the potential need for the authority to consent to restraint in relation to ongoing medical treatment. However, the order was not thought necessary at that time. Reference was made to the fact that P had had seven previous admissions to GH, and also that at the time of the hearing, although initially admitted on 5 July 2011, P's condition was such that he was still on a locked unit. The applicant described a pattern that appeared to have developed over time of P being admitted to GH for a few months and then discharged; of him managing to sustain himself for a month or so and then deteriorating, especially given his drug use; and him then being admitted back into hospital. Concern was expressed that his asthma and respiratory difficulties presented a real risk of him dying from simply not being able to breathe after a loss of consciousness.

9 On 12 August 2011, the day following the hearing, P was transferred from GH to SH due to an exacerbation of his respiratory failure 'on a background of chronic asthma, sleep apnoea and an inability to cease smoking'. He required ventilation and was uncooperative with equipment. Therefore an urgent application was made by the treating team to the Tribunal for the addition of a restraint authority to the guardianship order.

The third orders

10 On 1 September 2011, an urgent hearing was convened and the Tribunal amended the guardianship order authorising the Public Advocate to consent to restraint to give effect to any medical treatment decision by the guardian. It is to be noted that SH is not an authorised mental health facility and therefore the authorities that might be available under the Mental Health Act 1996 (WA) to restrain a patient are not available in that environment.

11 The documents reveal that at this time P was essentially homeless as he was not able to return to his previous unit. The documents again refer to the compromise to his respiratory function from his asthma and his smoking. Reference is made to damage to his lungs and the views are expressed that he will always be prone to respiratory failure of some type and that this is going to be a condition for the remainder of his life. By this time, he is also described as suffering from Pulmonary Obstructive Disorder (at times referred to as Chronic Obstructive Pulmonary Disease or COPD). Reference is also made in the documents to the fact that his treatment cannot be augmented with oxygen other than in a controlled environment because of his chronic smoking. The hospital social worker described P's issues as being so bad that they are 'always going to be "acute"' and that oxygen or alternate assisted breathing mechanisms are required to keep him alive; that 'his condition is so severe that if he doesn't get oxygen most of the time, he [will] deteriorate quite rapidly'. The Tribunal found at the time that the authority for restraint was necessary 'for the preservation of his life' as he was 'at serious risk of death' if the order was not in place.

The fourth orders

12 The guardianship order was made for a two year period. It therefore came on for review in January 2013. The hearing was initially adjourned to enable P to participate in the hearing. On 4 February 2013, the Tribunal amended the guardianship order deleting the restraint function (as P had by this time been moved back into a mental health facility (GH) as an involuntary patient) and ordered a further review in 12 months. It is to be noted from the Public Advocate's report of P's condition at that time that, firstly, he was, by then, suffering from metabolic syndrome compounded by his anti­psychotic medication, including obesity, cardiac hypertrophy, sleep apnoea and diabetes mellitus. Further, it was noted that he was not able to be given the full therapeutic levels of anti­psychotic medication required to treat his psychiatric symptoms as such dosages would depress his respiration ­ that is, his oxygen intake ­ to dangerous levels. It was therefore difficult to manage his delusions and hallucinations. The Public Advocate also noted that despite P's involuntary inpatient status, he had tested positive to amphetamines and his levels of smoking had, in fact, increased.

The fifth orders

13 The matter next came before the Tribunal for review on 4 February 2014. The Tribunal confirmed both orders in the same terms for a further five years. It is noted that at that time, P's cognitive, mental and physical health was reported to have deteriorated. Between October 2013 and February 2014, he had been admitted at least eight times on an urgent basis to SH, given the respiratory issues. The Public Advocate was noted to have utilised the treatment and health care authority to consent to the use of updated case and crisis management plans. On 18 November 2013, the Public Advocate was requested to consent to the code blue level (a measure of emergency response) being dropped from 75% oxygen intake to 70% oxygen intake by the respiratory team at SH. The guardian refused to consent to that measure. The guardian also advised the Tribunal that the treating team was looking at whether, in the circumstances, it was appropriate for the team to consider requesting consent to a 'NFR flag' ­ that is, a decision by the guardian that P in certain medical circumstances not be resuscitated. The guardian expressed the view to the Tribunal that it was critical that P have an independent guardian, acknowledging that the management of P's conditions presented very great difficulties on a number of levels for both GH and SH, and that an independent voice for P was essential.

14 The order was confirmed for five years; that is, for review on or before 4 February 2019.

The sixth orders

15 In February 2016, the Public Advocate requested the matter be listed for review to add to the authorities of the guardian an authority to facilitate the guardian assisting P to navigate the criminal justice system. It appears P had assaulted a staff member at GH and had been charged with assault. The guardian advised that P was insisting he could and would represent himself and would not use any legal aid assistance.

16 On 2 March 2016, the Tribunal made orders adding the usual suite of authorities (legal authorities) provided to a guardian to assist a represented person in navigating the criminal justice system.

The issues for this review

17 At the 2 March 2016 hearing, the details of a regime of management of P's smoking (smoking regime) came to the attention of the Tribunal. Although the previously mentioned additional legal authorities requested were granted, the Tribunal determined that it ought to seek submissions from particular relevant parties in relation to the question of whether or not the guardian's authority ought to be specifically augmented to facilitate the negotiation of and consent to any smoking regime, there being, in the Tribunal's mind, some doubt about whether or not such arrangements could be said to constitute a treatment decision under either the Guardianship and Administration Act 1990 (WA) (GA Act) or the Mental Health Act 2014 (WA) (MH Act). Orders were made to facilitate the filing of submissions on relevant questions by any of the Public Advocate, the Chief Psychiatrist and the Mental Health Advocate, and a short review was set for the order to be held on or before 2 June 2016.

The hearing

18 The matter was reviewed again on 2 June 2016. The hearing was attended by P, his solicitor MA, his Mental Health Advocate NI, his guardian HG, his designated social worker at GH, KM, and J, a nurse from GH.

19 The Tribunal had the benefit of reports from Dr RD, the consultant psychiatrist in charge of P's care since 2014, and from KM, and also submissions from the Public Advocate, from the Chief Psychiatrist Dr NG, from P and NI, from the Chief Mental Health Advocate DC, and also of oral submissions made on behalf of P by MA.

Capacity

Capacity ­ the legislation

20 Section 4 of the 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.

(5) A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.

(6) An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.

(7) In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative 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.

21 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.

Capacity ­ the evidence

22 There was no substantial dispute at the hearing as to P's incapacity. P was represented by his lawyer MA. No challenge was made to the capacity evidence before the Tribunal.

23 For the purposes of the review, the Tribunal had the benefit of two reports from Dr RD, the psychiatrist in charge of P's treatment since 2014, dated respectively 7 January 2016 (prepared for the Mental Health Review Tribunal) and 19 February 2016. Dr RD confirms that P has been in GH since October 2011 and that his mental state has deteriorated over the years resulting in a chronic, partially treated psychotic illness. He confirms the static impairment to P's mental function as a result of his 'schizo­affective disorder ­ persistent psychotic symptoms and mood disturbance [and] severe chronic obstructive pulmonary disease (COPD) with type 2 respiratory failure with chronic hypoxia'. He records the prognosis for both as 'poor' and states that 'the former has shown basically no response to treatment and the latter is likely to lead to premature death'. He states that P presents clinically 'with a syndrome consistent with chronic manic and psychotic symptoms'.

24 Dr RD records that 'extensive cognitive testing has revealed that P has limitations in his executive functioning and problems with abstract reasoning, attention, memory and perceptual processing [and says that] [t]his spectrum of deficits is consistent with a history of severe hypoxia. These deficits, coupled with P's impulsivity, novelty seeking and lack of judgment render him severely functionally impaired'. Dr RD records P as incapable of making reasonable decisions in relation to his personal health care, his living situation or his financial affairs and is incapable of executing an enduring power of attorney. Dr RD goes on to say 'the combined effects of chronic hypoxia, long term substance abuse and progressive mental illness have resulted in impaired cognitive function. [P] is facing an assault charge but sees little need for legal representation and has declined this repeatedly, suggesting lack of understanding of the consequences of doing so'. He also notes that, though it is thought that the chronic hypoxia might be addressed through smoking cessation and that supplemental oxygen may have cognitive benefits, '[P] has demonstrated absolutely no interest in quitting smoking, rendering supplemental oxygen grossly unsafe'.

25 Dr RD's description of P's mental state is as follows:

[It] has shown little sign of improvement, and is possibly gradually worsening, which could be as a result of chronic hypoxia engendered by his respiratory problems. In the ward his mood is often elevated or irritable and he also displays thought disorder, grandiose delusions, auditory hallucinations, mild disinhibition, and gesturing and grunting [behaviours], which suggest auditory hallucinations (which he almost always denies).

[P] also displays aggressive tendencies, particularly related to cigarettes, and is often seen to be banging on doors and swearing when his desire for a cigarette is not met. He has been assaultive[.]

26 In the context of P's lack of insight into his illnesses, Dr RD notes that P believes he is well enough to live independently and be employed in the community.

27 The Tribunal also had the benefit of a report from KM, which confirmed her observations of P. They are largely consistent with the information supplied by Dr RD and her view that the guardianship order was required. She confirmed that there are no discharge plans presently in place for P 'because he requires [a] high level of supervision due to his ongoing physical health issues as well as [a] severe and persistent mental health condition'.

28 P attended at the hearing. He was represented by his lawyer MA. The Tribunal was able to observe P's demeanour which was largely quiet and respectful, if at times distracted. He contributed to a limited extent. He expressed the view that he was a capable person. Though seeming to appreciate the help of the Public Trustee and the guardian, he stated that he did not see why they were in place for him and that he did not really need them.

29 P has been the subject of orders in the Tribunal in respect of administration since 11 January 2011, and in respect of guardianship, since 11 August 2011. Findings have been made on six previous occasions that P meets the criteria under the GA Act for the making of guardianship and administration orders. The written medical and other evidence lodged in those matters was also before the Tribunal in this matter, and is largely consistent with the medical history, conclusions and opinions recited above.

Capacity findings

30 The Tribunal is satisfied that P is a person who meets all three of the criteria under s 43 of the GA Act for the making of guardianship orders. By reason of a combination of his mental illness and the accumulating cognitive damage which is being done by the hypoxia caused by his respiratory failure, he 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; and

iii) in need of oversight, care or control in the interests of his own health and safety or for the protection of others.

Need

31 The current guardianship orders empower the guardian to make decisions in relation to matters pertaining to P's accommodation, his medical care and treatment, any services to which he should have access and to assist in a variety of ways in relation to certain criminal charges which, at the time of the last order, P was facing.

32 At the time of the making of the last order, the Tribunal raised the question of whether or not the guardian should have a further specific function, namely, authority to consent to any regime of restrictions that the treating team or others at GH might seek to impose in relation to P's smoking of cigarettes.

The need for existing authorities

33 At the hearing, there was little issue taken with the existing legal authorities held by HG, save in relation to the authority relating to the criminal charges. HG confirmed that the criminal matters had now been resolved and that there was no ongoing need for that authority. Despite the possibility of further similar behaviours, HG confirmed that he was content to have that authority revoked at this time on the basis that this was the least restrictive course. He indicated that he was content to approach the Tribunal again in the future should a similar need arise.

34 In relation to the other existing legal authorities, HG confirmed the view expressed in his report to the Tribunal that P continues to be in need of a decision­maker for accommodation, health care treatment and services. He confirmed that the situation remains largely unchanged for P since the last hearing and that the issues remain the same. He confirmed that at present P's mental illness is unable to be managed therapeutically as the medication to control his mental health symptoms depresses his respiration and this is at least in part why he continues to remain an involuntary inpatient in GH. He referred to the specific submission from the Public Advocate and confirmed that there are presently no accommodation options in the community that would meet P's needs, given the issues regarding his smoking and the respiratory issues and the issues related to oxygen monitoring and provision. It is noted that MA in his submission indicated that an argument was still being pressed with the treating team on behalf of P that he could be managed in the community on a Community Treatment Order (CTO) and that he was only being detained in hospital because of the desire to control his smoking.

Findings concerning the existing legal authorities

35 The Tribunal is satisfied that there is a need for an independent guardian to act for P in relation to the ongoing issues associated with the management of his various serious health concerns. As well as his mental health issues (which are currently managed under the MH Act, not by the guardian), he suffers from chronic respiratory failure with hypoxia which has led to cognitive decline, severe asthma, obesity, Type 2 Diabetes Mellitus and sleep apnoea. Decisions are required to be made on an ongoing basis on P's behalf in relation to the management of all these matters, including, it appears, decisions regarding the applicable levels for a crisis code blue call, and decisions regarding resuscitation in case of an adverse event.

36 The Tribunal is satisfied that there is a need for an independent guardian to act for P in relation to ongoing issues associated with where he is to reside, and the services and supports to which he may need access. Though he is currently an involuntary inpatient in GH under the MH Act, it appears that there is an ongoing effort to see whether there is any way that, after so many years in hospital, his various conditions could be managed in the community. If this is to occur, it is the case that P will need to have an independent guardian in place to participate on his behalf in any decision­making as to where he might live and with whom, whether permanently or temporarily, and also as to what support services he made need to have access to in the community.

37 The Tribunal is satisfied that the need for the authority to assist in relation to criminal matters has ceased and that that legal authority should be revoked. As suggested by the guardian, it can be reinstated in the event that it is required again. Hopefully, there will be no repeat of the unfortunate events that led to the authority being required on this occasion.

The need for an authority regarding the 'smoking regime'

38 For the Tribunal to add a function to the authority of the guardian, it must be satisfied that there is a need for such a function. If there is a less restrictive alternative available that permits the required decisions to be made on behalf of P, then a further function ought not be added to the guardianship order, there being no need for a guardian to have authority to make those decisions.

39 The submissions provided by the various parties previously referred to express a variety of views on this matter. The principal issue addressed appears to have been whether or not the decisions regarding the management of P's smoking could or should be made under the MH Act ­ in other words, whether there is a less restrictive alternative to the augmenting of the guardian's functions.

40 The issue that the parties were invited to address is as follows:

• whether or not the limited guardianship order for P ought to include the following authority:

to consent to the implementation of any aspects of the treatment and care plan that is operative in relation to P from time to time insofar as the provisions of such a plan seek to impose restrictions on:


1) his right to smoke tobacco cigarettes;

2) the number of tobacco cigarettes that he is allowed to smoke during any defined period;

3) the circumstances in which he shall have access to his personal allowance funds; and

4) his right to utilise his personal allowance funds to purchase tobacco cigarettes, whether from individuals or from a shop or canteen.

What limits are imposed under the 'smoking regime'?

41 The Chief Psychiatrist Dr NG in his report to the Tribunal states that:

Following advice from the Respiratory Physician at [SH], a program to restrict [P] smoking is now in place. While it is the Respiratory Team's recommendation that [P] cease smoking completely, he refused to consider such an idea and a plan for restriction of his smoking was developed. The plan includes one tobacco cigarette every 2 hours between 06.00 and 21.00 hours.

His oxygen saturation level is measured regularly and if it drops [below] <80 unescorted ground leave is cancelled, to minimise the risk of [P] facing an episode of acute collapse in an unsupervised situation. The management plan is reviewed regularly and changed in line with other reviews of his mental and physical state. (Tribunal emphasis)

42 Dr NG notes P's incapacity and goes on to say:

… since being on [the 'smoking regime'] his physical health has improved slightly, however [P] is of the view that he can commence smoking as he did in the past up to 80 cigarettes a day with no detrimental effect.

43 Dr NG also notes:

While inpatients generally in mental health facilities cannot smoke within hospital grounds, involuntary patients under the [MH Act] 2014, who are unable to leave a secure ward, are allowed to smoke in a suitably ventilated area on the secure ward as part of the WA Government's exemption to the Smoke­Free policy in health facilities.

44 Dr RD, in his January 2016 report, stated as follows:

Since [P] was moved to [name suppressed] Ward in mid­2014 he has shown good improvement in his respiratory function, with only two admissions to [SH] for COPD/Respiratory failure. This improvement can be directly attributed to the ability to closely monitor and limit his cigarette intake on this ward (from previous 80 to 100 per day), aided by monitoring of his blood oxygen saturation. However with the introduction of unescorted ground access there has been further reduction in his pulmonary function as noted in his Respiratory clinic review in mid­2015. [P]'s propensity to bargain with other patients and purchase cigarettes whilst on Unescorted Ground Access (UGA) has led to him smoking up to 30 cigarettes per day.

The Respiratory Team at [SH] has requested [P] to be limited to one cigarette every two hours in an attempt to reduce his further decline in lung function. This has been addressed through a management plan involving [P] accessing the grounds without carrying money, having purchased desired items earlier in the day whilst out with nursing staff. This plan has helped to limit [P]'s cigarette smoking, now thought to be less than twenty per day. While restrictive, it is the Respiratory Physician[']s opinion that were [P] to smoke as desired, his life expectancy would be less than two years. Even with tight smoking control, [P]'s life expectancy has been drastically shortened by his lung disease. (Tribunal emphasis)

45 The Public Advocate's submission confirms the advice from P's respiratory physician as at 11 May 2016 that:

Ideally, [P] needs to stop smoking but it is generally accepted that this is unlikely. To avoid periods of aggression, it was recommended, and implemented, [that there be] an increase of one cigarette a day as [it] was considered [this] would make no difference to his health. A nicotine patch 21mg/24 hours was also recommended, to help with cravings, however [P] declined the patch. The extra cigarette is given at 7 am, so he gets one cigarette at 6 am, 7 am and 8 am and then one cigarette every two hours until 22:00 hours. (Tribunal emphasis)

46 The restrictions imposed can, it seems, be summarised as follows:

1) A numerical limit on the number of cigarettes over time. This assumes that P does not have physical control of packets of cigarettes owned by him, but rather, that the packets are held by staff and the individual cigarettes are issued to him one at a time.

2) P's access to the hospital grounds is restricted if his blood level oxygen saturation drops below a certain level. In that sense, his ability to move freely about the hospital grounds is curtailed.

3) P is required to submit to regular blood level oxygen saturation measures in order to determine whether at any particular time he ought to have unescorted ground access.

4) P is not permitted to carry money during unescorted ground access, presumably to prevent him making purchases of cigarettes from other patients or other third parties.

5) Any desired purchases must be made by P whilst under supervision.

6) These last two items assume that P does not have physical control of his money (being his allowance from the Public Trustee issued via the hospital cashier), but rather, that it is only permitted to be issued by the cashier to P under supervision and that what is issued is either held by staff or held by P in circumstances secured by staff (for example, in a lockable draw or locker allocated to P but for which the key is retained by staff).

What is the nature of the decisions (smoking decisions) made in imposing the restrictions?

47 In this case, whether or not there is a less restrictive alternative to the augmenting of the guardianship order with a further authority depends upon whether the smoking decisions are 'treatment decisions' under the GA Act or under the MH Act.

48 Both Acts define a 'treatment decision' in relation to a person in essentially similar terms as 'a decision to consent or refuse consent to the commencement or continuation of any treatment of the person'.

49 This clarifies that a decision may include consent or refusal, but otherwise, somewhat unhelpfully, defines a 'treatment decision' as a 'decision' regarding any 'treatment' of a person.

50 The GA Act defines 'treatment' in s 3(1) as:

(a) medical or surgical treatment, including ­

(i) a life sustaining measure; and

(ii) palliative care;

or


(b) dental treatment; or

(c) any other health care[.]

51 Again, though this clarifies that the treatment may be 'medical', 'surgical' or ' dental' or relating to 'health care', it somewhat unhelpfully defines 'treatment' as 'treatment or other health care'.

52 Clearly, if the smoking decisions fit within the definitions, the current guardian can already make such decisions.

53 The MH Act defines 'treatment' in s 4 as:

… the provision of a psychiatric, 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, and does not include bodily restraint, seclusion or sterilisation[.]

54 This may be relevantly distilled to 'treatment' as any of a broad range of 'intervention[s] … intended to alleviate or prevent the deterioration of a mental illness or a condition that is a consequence of a mental illness'.

55 If the smoking decisions fit within this definition, the Chief Psychiatrist (through his delegate, the relevant consultant) can already make such decisions.

56 If the smoking decisions fit within neither definition, and is regarded as a qualitatively different type of decision, the guardianship order needs to be augmented to provide an authority to consent to the smoking regime decision or to consent to an appropriate category of decision­making into which smoking restrictions and associated matters might fit.

57 There can be little doubt that, since the amendments that removed the exclusion of psychiatric treatment decisions from the definition of 'treatment' under the GA Act, the legislature intended that a guardian be able, in some circumstances, to make treatment decisions in relation to psychiatric illness or symptoms. On its face, this would allow for some overlap between the two Acts.

58 The MH Act is a piece of legislation enacted to specifically provide, inter alia, for 'the treatment … of people who have a mental illness'. Where the MH Act has been invoked, subject to the rights and protections built into the Act, it allows for the Chief Psychiatrist (or his delegate) to determine the treatment to be received by a patient. What is clear is that, in line with the usual principles of statutory interpretation, where the MH Act has been invoked and a person is an involuntary patient, the MH Act 'covers the field' in relation to the treatment decisions relating to their mental illness. In this case, it is common ground that P is an involuntary patient under the MH Act.

The submissions received

The chief psychiatrist

59 Dr NG in his submission states, inter alia, as follows:

Tobacco smoke contains substances (including nicotine) which are physically addictive. This is a component of [P]'s complex situation. While tobacco addiction exists within international psychiatric classification systems … treating addiction involuntarily is essentially excluded from the [MH Act] 2014 …

While smoking tobacco per se is not a mental illness, [P]'s smoking clearly exacerbates his mental illness. On balance, I do not think the management of smoking is a considered management of mental illness, although this may be argued.

60 He states further:

The view of his consultant psychiatrist Dr [RD] and the […] ward staff is that [P] needs to be on a restriction of cigarettes plan to prevent deterioration in his physical health … [T]he plan is important in the treatment and care of [P] and is seen as a way of controlling his smoking to prevent further deterioration of a physical illness. Dr [RD] sees some advantages for a Guardian to approve a treatment plan in regard to restriction of smoking as long as it does not impact on the day­to[­]day running of the program or the Guardian not approving [the] plan.

61 Quoting the definition of 'treatment' under the MH Act, Dr NG goes on to say:

… It could be argued that given [P] has no insight into why his smoking needs to [be] restricted, the restriction of smoking plan is appropriate as a mental health intervention and meets the criteria of treatment under the legislation. Certainly his physical health will deteriorate if allowed unrestricted access to cigarettes and that will significantly impact his mental health. Likewise if [P] was compelled to cease smoking it is likely that his mental health will deteriorate and he is likely to become aggressive and difficult to manage.

However[,] the restriction of smoking plan is in place primarily to assist with [P]'s physical health[,] and consent for treatment regarding physical health is a decision for the alternative decision[­]maker, in this case the Guardian. I note that the Guardian is already involved in being aware of the plan and discussing the plan with the treating team ... Therefore I see no reason why the Limited Guardianship order for [P] ought not to include authority to consent to the implementation of any aspects of the treatment and care plan that is operative in relation to [P]. In practice it would be the treating team who [would] draw up the plan and approval would then be sought from the Guardian.

If implementation of the plan resulted in [P]'s mental health deteriorating then the matter might move from being a matter entirely of physical health to a combination of physical and mental health ­ the Mental Health Treating Team does have a role in being part of the process that defines the strategy to manage the impact of tobacco cigarettes on his health.

...

… I do not see that it is the Guardian['s] role to decide at a 'micro' level eg whether it should be 8 or whether it should be 10 cigarettes per day ­ this difference has no clear definable impact on physical health and should be left for clinicians to decide this practical detail. Thus, the Guardian has a role to consider broadly regarding cigarette consumption. (Tribunal emphasis)

62 In his summary, Dr NG states as follows:

(i) [P] does have a right to smoke, although the amount of tobacco cigarettes has [a] chronic and life­threatening impact on his physical health, therefore the Guardian would comment broadly on this aspect.

(ii) Within the broad consideration of the Guardian (ie unfettered, limited, none) the more specific number of tobacco cigarettes that he is allowed to smoke during any defined period should be determined by the treating team.

(iii) The circumstances in which he shall have access to his personal allowance funds is a matter to be determined among the Public Trustee, the Guardian and the Mental Health Treating Team, given that this may have [a] direct [and] acute impact on his health.

(iv) His right to utilise his personal allowance funds to purchase tobacco cigarettes, whether from individuals … or from a shop or canteen[,] is a matter to be determined between the Public Trustee and the Guardian in consultation with the Mental Health Treating Team. There needs to be a balance to ensure buying essentials such as toiletries is not jeopardised in order to manage discretionary funding. (Tribunal emphasis)

The Chief Mental Health Advocate

63 In her submission, DC expresses the view that:

A decision by a Limited Guardian to agree to a treatment and care plan that imposes physical limitations on smoking by [P] would be a treatment decision if it comes within the meaning of 'other health care'. Advising a person to give up smoking and providing nicotine patches and the like would be other health care. Whether banning a person from smoking and/or controlling their possession of and access to cigarettes is 'other health care' is debatable. Ordinarily a health provider cannot physically stop or control a person's smoking in the way proposed by this order.

It may be argued that the order allows the Guardian to make a decision to follow health care advice … However, the order is meaningless unless the Guardian or others caring for [P] can physically stop [P] from smoking. In other words the order is giving the Guardian the right to authorise others to physically remove or withhold cigarettes from the possession of [P] and/or stop [P] from having access to purchase cigarettes. The latter could include refusing [P] from ground access ie detaining [him].

This is not the sort of health care done to people with capacity who choose to smoke despite having [a] serious lung disease. Arguably it is not a health care decision being made but something far more restrictive and a much bigger removal of P's rights and liberty.

Although it may be possible to restrict [P's] access to funds to purchase cigarettes, if this is being done only to stop [him] smoking, the decision must still be on the basis of it being a health care decision so the same arguments apply. A doctor cannot ordinarily take money off a person as part of their treatment and care plan. (Tribunal emphasis)

The Public Advocate (PA)

64 In her submission, the PA confirmed that P has a long term desire to smoke. She also confirmed the advice received by her from Mental Health Services that there was no challenge to P's right to smoke ­ that as an involuntary patient, there is a hospital exemption policy that allows this to occur ­ but that there needs to be some smoking restrictions 'for his health and safety due to his COPD and use of oxygen' (Tribunal emphasis).

65 The PA confirmed the communication to her from the Chief Psychiatrist that he 'agrees that a patient's cigarette smoking is a health issue best determined by a guardian with treatment authority rather than under the MH Act'.

66 The PA expressed their preference 'under the authority of treatment and health care, to consider any proposed substantial changes to [P's] cigarette regime, rather than determining the number of cigarettes that he should be allowed. A substantial change to [P's] cigarettes, that has a significant effect on his physical or mental health, could be a recommendation to have open access to cigarettes, or to cease their provision entirely'.

P's wishes

67 In the submission prepared by P with the assistance of NI, P concedes that he is addicted to cigarettes. He indicates that he does not mind the staff limiting cigarettes as 'it helps even out the distribution throughout the day and I think I need that. Otherwise I'd probably smoke too many at once'.

68 In the submission, NI records that P 'believes he would benefit from support which limits the number of cigarettes he smokes per day'; that he 'considers the current nine cigarettes a day restriction (one every two hours) has been too restrictive and unrealistic to a point that he has been obtaining 10 to 20 more cigarettes from other patients and picking up butts on the ground'. P said 'it's so degrading and embarrassing because I have to beg from other patients and pick up someone else's butts. It can get expensive since [other patients] charge a higher price'. P said he used to smoke 80 to 100 cigarettes a day but since he came to GH about five years ago, he reduced the number to 60 cigarettes per day prior to the strict regime. Currently he said he is smoking about '25 cigarettes a day'.

The submission of P's lawyer MA

69 MA conceded that P is incapable of making decisions around his smoking and is incapable of making treatment decisions regarding his COPD treatment and decisions regarding the management of his smoking.

1) Initially, MA submitted that the smoking decisions were not decisions for a guardian under the GA Act, either under a specific tailored authority or under the already existing medical treatment authority. Rather, he submitted, they should be regarded decisions for mental health treatment under the MH Act. He refers to Dr NG in his submission as 'leaving the window open for an argument' that the smoking decisions come under the MH Act. On P's behalf he sought to put that argument.

2) He referred to the definition of 'treatment' in s 4 of the MH Act which is as follows:


… the provision of a psychiatric, 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, and does not include bodily restraint, seclusion or sterilisation[.] (Tribunal emphasis)

3) In looking at the MH Act definition, he submitted: firstly, that the smoking decisions could be considered to be either 'psychosocial' or 'medical' interventions; secondly, that they should be considered not as treatment for mental illness per se but as 'treatment for a condition that is borne out of mental illness; that is, referring not to the limb of the definition that refers toalleviating or preventing the deterioration of a mental illness (first limb) but to that limb of the definition of 'treatment' that encompasses 'treatment to alleviate or prevent the deterioration of … a condition that is a consequence of a mental illness' (second limb). He conceded, thirdly, that the exceptions to treatment in the last part of the definition were not relevant in this case.

4) MA submitted that regimes for the management of smoking have been provided to P under the MH Act in the past and that the Mental Health Review Tribunal (MHRT), in reviewing P's involuntary status, has routinely accepted that the smoking regime formed part of P's treatment under the MH Act. He submitted that P's 'incessant smoking' predated his COPD and that it was P's mental illness that removed his capacity to make decisions regarding his smoking; that his mental illness is the reason why he does not recognise his COPD and the health implications of his smoking, and that it is this that makes the management of his smoking 'treatment for a condition borne out of his mental illness'.

5) MA sought to liken the application of the smoking conditions to P to the situation for a patient with a diagnosis of polydipsia, where access to water must be restricted to prevent excessive drinking.

6) MA claimed that P's management of his smoking and his compulsion to smoke is 'driven by his mental illness'. He also conceded that P was addicted to cigarettes and referred to his 'compulsion' to smoke. He claimed that this addiction is part of his mental illness ­ a symptom of it ­ although he conceded that whether addiction forms part of mental illness is 'something of a grey area'.

7) MA submitted that a finding by the Tribunal that the smoking decisions do not fall under the MH Act is not in P's best interests as it would expose P to the risk that the MHRT might then be persuaded that P's treatment under the MH Act (excluding the smoking conditions) could be provided on a CTO, and that the MHRT might order his release into the community, potentially against P's best interests. It appears to be common ground that if P lived in the community, the smoking conditions could not be successfully enforced and, in MA's submission, this would not be in P's best interests.

8) MA further submitted that the involvement of a guardian in the smoking decisions was unnecessarily restrictive. He respectfully suggested that the guardian would 'more than likely' follow the advice of the treating team and that thus there would be an unnecessary layer in the decision­making to no good purpose.

9) As his submission progressed, MA moved to a position that the smoking conditions could potentially be seen as treatment under both the GA Act and the MH Act, as, he suggested, was Dr NG's position, and that this could operate against P's best interests. His submission then emphasised that it was less restrictive of P's rights for the smoking decisions to be dealt with as treatment under the MH Act than as a function of guardianship under the GA Act, and further, that P's position would be made more complicated by a ruling that a guardian had a role, and that it was 'inherently more restrictive for there to be two levels of decision-making'.

10) MA submitted that if the guardian exercised a judgment not to follow the advice of the treating team as to the smoking decisions, the treating team, under its duty of care, since it was arguable that the authority existed under both Acts (which, he submitted, was the thrust of the submission from the Chief Psychiatrist), would impose the smoking decisions anyway under the MH Act, notwithstanding the refusal of consent by a guardian.

11) This being the case, MA further submitted that it was less restrictive for P and his advisers and advocates to be required to deal only with the treating team in their efforts to negotiate a particular outcome than having to persuade both a guardian and the treating team. He submitted that there was, and would be, 'less of a discourse' between a guardian and P than between P and his treating team, between whom there were dealings every day, and that at a practical level, it was not practical or feasible for there to be calls to the guardian for every single variation in the smoking decisions.

12) MA submitted that the review mechanisms available to P under the MH Act would operate more in his best interests than that under the GA Act. The MH Act reviews are automatic and regular (three monthly) and do not rely on P having to seek review, which is the case under the GA Act if reviews are to occur in­between the periodic guardianship reviews which he submitted were 'infrequent', guardianship orders being, in his submission, '[more] lengthy ­ 3 to 5 years'. He submitted that under the MH Act, P has access to strong independent advocacy through the Mental Health Advocate. He submitted the Advocates from that office are 'more present' and have more contact with P than he would or could have with an Office of the Public Advocate guardian.

13) MA also submitted that there was a larger public interest ground in the smoking decisions being seen as part of treatment under the MH Act and not the GA Act. He sought to distinguish between family members and carers as guardians, and guardians from the Office of the Public Advocate. He submitted that though the MH Act allows for the involvement of guardians, in view of its stated purpose 'to provide for the recognition of the role of carers and families in providing care and support to people who have a mental illness', the desired involvement of guardians should not be seen as including guardians who were institutional guardians, such as Office of the Public Advocate guardians. He submitted that 'it goes against the MH Act and the [United Nations] Charter [on the Human Rights of People with Disabilities] to have a state appointed state official be both the advocate and the decision[­]maker'.

14) In terms of the smoking decisions being 'treatment', MA also referred to the decision in MM v Mental Health Review Board (unreported, WASC, Library No 990093, 4 March 1999) (Re MM) as authority for the proposition that the provision of the structures and oversight that come with institutional care can constitute 'treatment'; and that restriction or coercion itself can be 'treatment' in the same way that the provision of supervision is treatment. He further submitted that the ability of a guardian under the GA Act to effect restriction or coercion in the best interests of a patient such as P is less than the power to do so that is available to the treating team under the MH Act; and that this may have an effect on the availability of the benefits of the smoking decisions to P.

15) MA conceded that given the breadth of matters that may have to be taken into account within a hospital ward when making the decisions about how to manage P's smoking issues, there were potential matters where interests might conflict. He conceded that the Public Advocate, when guardian, had a singular responsibility only, namely, the best interests of P. Whilst making those concessions, MA's submission was that the advocacy available to P through the Mental Health Advocate's Office, plus the availability of regular MHRT reviews, was sufficient to safeguard against any conflict of interest and should ameliorate any concern arising from the same.

Findings on need and on less restrictive alternative

70 The Tribunal finds that the smoking conditions do not constitute 'treatment decisions' for the purposes of the GA Act. Although I accept that, in general terms, the restrictions imposed are borne out of a concern for P's health, I do not accept that this, of itself, means the smoking conditions constitute treatment decisions.

71 The purpose behind the restrictions is to limit P's indulgence in a legal activity, namely, smoking. It is the case, and I find, that P is addicted to tobacco cigarettes. It is clear, and I find, that he has been smoking heavily for many years. It is likely that he was addicted before the development of his serious COPD. Whether or not such an addiction per se should be considered to be a part of his mental health diagnosis does not need to be addressed as there is no suggestion on the evidence that he is, in fact, being treated for an addiction; to the contrary in fact, in view of comments in Dr NG's submission. The language of the smoking conditions and the discussion of them in the various papers are in terms of the 'management' of his smoking in view of his serious COPD issues.

72 It is clear from the submission of Dr NG that the purpose of the smoking conditions is 'a matter entirely of physical health', and 'to assist with his physical health', in the context of his very serious COPD and ongoing hypoxia­related brain injuries.

73 It is the view of Dr NG, who is, through his delegate, the decision­maker for treatment under the MH Act, that the management of smoking is not management of a mental illness. This is a proposition with which the Tribunal agreed. However, Dr Ng also expresses the view that, given P's lack of insight, the smoking conditions are appropriate 'as a mental health intervention and meet the criteria of treatment under the MH Act'.

74 The Tribunal respectfully disagrees with the latter proposition. The fact that P has no insight into the need to limit his smoking may mean that he is not capable of making a decision regarding his smoking but it does not, of itself, impact qualitatively on the nature of the decisions to be made. In other words, the lack of insight in P does not itself make the smoking decisions a form of'treatment' under the MH Act. The treatment to be imposed must still meet the definition in s 4 of the GA Act, whatever P's level of insight.

75 In my view, it is necessary to look at the specifics of the limitations that are being imposed in order to determine the nature of the decision­making by which they are imposed, so as to see whether the definitions are met. The smoking conditions mean that:

• P's physical control of the cigarettes themselves is restricted to a set number (designated number) and then only one at a time and at set times;

• P's ability to access his daily allowance of funds from the facility cashier is restricted;

• P's physical control of his money once accessed is restricted unless he has an escort;

• P may only make purchases of any sort under supervision;

• All of these measures are imposed for the sole purpose of limiting P's opportunities to exceed the designated number by acquiring cigarettes from elsewhere;

• At times, P was not permitted unescorted ground access (for the same sole purpose);

• P's access to the grounds of the facility is, in some circumstances (related to P's blood oxygen measures), restricted; and

• P is compelled to undertake blood oxygen testing to gain ground access.

76 Firstly, whether viewed individually or collectively, I am not persuaded that it is possible to categorise these measures, in the context in which they are applied to P, as 'treatment decisions' as defined under the GA Act. They are not decisions implemented for the purpose of 'treating' (in any sense in which that word might be usually understood) an illness or condition. I accept what MA says about the fact that in some situations the provision of a controlled type of environment (such as a secure residential care placement) can constitute 'treatment'. It is certainly true that there are many situations in which the existence of 'structure', whether it be a known set of rules or a controlled or predictable environment, are said to be a beneficial part of a recovery or stabilisation program of treatment for mental health patients. To that extent, I accept the submission that in some circumstances, restriction or coercion itself can constitute treatment. But that is not to say that all restriction or coercion constitutes treatment. I do not accept that the restrictive aspects of the smoking regime conditions in this case make them a form of 'treatment'; I do not accept that they are 'medical' decisions, nor do I accept that they ought, in context, to be seen as 'health care decisions'. In this respect, I agree with the submission made by DC. I agree with her submission that what is being done here is 'something far more restrictive [than health care] and a much bigger removal of P's rights and liberty'.

77 In determining the meaning of treatment, it is necessary, consistent with the rules of statutory interpretation, to look at the ordinary meaning of the word in its context.

78 As has been stated, the GA Act is helpful only insofar as it specifies in the s 4 definition:

1) a list of inclusive descriptors of categories of 'treatment ­ dental, medical and surgical (including a life sustaining measure and palliative care); and

2) 'other health care'.

79 The smoking regime does not fit within the notions of dental treatment or surgical treatment, in my view. So, is it 'medical treatment' or 'other health care'?

Medical treatment

80 The Australian Oxford Dictionary (2^nd ed, 2004) provides the following definitions of the words treat, treatment, medical and medicine:

To treat: to apply medical care or attention to[;]

Treatment: the application of medical care of attention to a patient[;]

Medical: of or relating to the science of medicine in general[;]

Medicine: the science or practice of diagnosis, treatment and preventing of disease[.]

81 In similar terms, The Macquarie Dictionary (6^th ed, 2013) provides the following definitions of the words treat, treatment, medical and medicine:

To treat: to deal with … in order to relieve or cure[;]

Treatment: the application of medicines, surgery, psychotherapy etc., to a patient to cure a disease or condition[;]

Medical: of or relating to the science or practice of medicine[;]

Medicine: the art or science of restoring or preserving health or due physical condition by means of drugs, surgical operations or appliances, manipulations etc., … the art or science of treating disease with drugs or curative substances[.] (Tribunal emphasis)

82 In the decision of Re MM, Scott J determined the Review Board was not in error in finding that 'treatment' under the MH Act for a patient suffering from a dementing illness with psychotic features included not only the patient's anti­psychotic medication, but also the provision to her of supervision and a safe environment in which to live.

83 He said at page 16:

… the question that really falls for consideration under this ground of appeal is the proper construction of the word 'treatment' and whether it includes the provision of 'supervision and a safe environment in which to live'. 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.

In Re Grigor v Department of Health and Mr DWP (1989) 3 VAR 258, the deputy president said at 266:


'I turn to a consideration of what is meant by "treatment". The word is not defined by the Act. The Shorter Oxford Dictionary ascribes to 'treatment', as the third of various meanings, the meaning of "management in the application of remedies; medical or surgical application or service".'

Although in the context of a different statute a similar conclusion as to the wide meaning to be assigned to the word 'treatment' was reached in Minister of Health v Royal Midland Counties Home for Incurables, Leamington Spa, General Committee [1954] 1 All ER 1013 per Evershed MR at 1016-1017.Applying that definition to this case the conclusion was open to the Board that part of the 'treatment' of the appellant's condition was her management during the term of her illness. Whilst I accept the submission by counsel for the appellant that one of the purposes of the Mental Health Act was to avoid institutionalisation wherever possible, that can, and indeed in this case did, involve a delicate and difficult decision.

84 Scott J's view was that 'treatment' can be defined as widely as 'management during the term of a mental illness' so as to include supervision and the provision of a safe environment in which to live.

85 With the greatest respect to his Honour, it is to be noted that in Re Grigor and Chief General Manager of Department of Health and Mental Health Review Board and Mr DWP (1989) 3 VAR 258, the word 'management' was not used in the broad but was expressed to be 'management in the applications of remedies'. This notion of the use of curative substances or processes is reflected in the Macquarie Dictionary definitions to which I have referred.

86 The matter may, it seems to me, be refined further, with the greatest respect again to his Honour, by looking at the words of another of the judges in Minister of Health v General Committee of the Royal Midland Counties Home for Incurables at Leamington Spa [1954] 1 All ER 1013.

87 In looking at the relationship between 'treatment', 'nursing' and 'care' as it might be provided to persons in an inpatient or residential setting, Denning LJ said as follows:

The key to the legal position lies in the fact that the Act draws a sharp distinction between 'treatment' and 'care': see s 24 and s 28 of the Act. If an institution is provided for the reception and 'treatment' of incurables, it is a hospital and is to be taken over by the State; but if it is provided only for the reception and 'care' of them it is not. Where is the line, then, to be drawn in this regard between 'treatment' and 'care'? Neither is defined in the Act, but 'treatment' means, I think, the exercise of professional skill to remedy the disease or disability, or to lessen its ill effects or the pain and suffering which it occasions; whereas 'care' is the homely art of making people comfortable and providing for their well-being so far as their condition allows. 'Nursing', too, is not defined, but it covers, I think, both treatment and care. Some part of it, indeed an important part, is the exercise of professional skill, but a goodly part, perhaps the larger part, is just kindness and attention. (Tribunal emphasis)

88 The developments in notions of modern health care particularly in the sphere of public health and preventative medicine may disclose a blurring at the edges of these concepts and may call for some elasticity in these concepts. 'Preventative treatment' and 'prophylactic treatment' have slipped into common parlance and are used quite deliberately in circumstances where disease or illness may not yet exist and where the prevention of disease, rather than its remedying, is the intended outcome. However, it seems to me that the notion of such treatment still contemplates the exercise of professional clinical or allied health skill in the use of therapies in targeting particular disease or disability.

89 It needs to be noted that the word 'treatment' has slipped into the lexicon in many areas of what has become known as 'the wellness industry' (for example, skin and beauty care, hair care, spa and massage therapies) where, although a level of skill and training on the part of the provider is involved, it is a moot point as to whether these involve the exercise of the type of professional skill intended by Denning LJ.

90 The body augmentation area, and its treatments /therapies for 'cosmetic' purposes, is another area where there is a blurring of the lines. There can be no doubt that the modern cosmetic medicine and surgery had its roots in the very laudable work done by doctors in attempting to remediate the injuries of and reduce the suffering of wartime burns victims, and thus likely came to be seen as a legitimate part of medicine and medical treatment. Quite where the line would be drawn, using Denning LJ's notion of 'treatment', either in the modern catalogue of cosmetic treatment options available within the plastic surgery sector of medicine, or in the apparent smorgasbord of supplements/injections/drug 'therapies' and regimes available within the glossily marketed exercise metabolism/health and fitness sector, is even less clear.

91 In the end, however, it is my view that what can be distilled from the authorities seems, therefore, to me to be that 'treatment' involves the exercise of professional skill (potentially from a range of clinicians and/or allied health professionals including but not limited to doctors) in the use of drugs, surgical operations, appliances, manipulations and therapies, aimed at remedying disease or disability or lessening its ill effects or the pain and suffering which it (that is, the disease or disability) occasions.

92 That being the case, it is my view that the decisions involved in consenting to the smoking regime that is sought to be implemented here do not constitute medical treatment decisions.

Other health care

93 The term 'other health care', where it appears in s 4 of the GA Act may on first blush seem to be very broad. In my view, it has to be read with the previous subsections in mind, that is, to be interpreted as meaning heath care other than medical, surgical or dental treatment.

94 The Macquarie Dictionary provides the following definitions of health care and health:

Health care: medical and other services provided for the maintenance of health, prevention of disease, etc[;]

Health: soundness of body; freedom from disease or ailment[.]

Health care then might then perhaps be seen as the other side of the treatment coin ­ 'treatment' being the targeting and remediation of illness and the health care, services for the maintenance of wellness/prevention of illness.


What about P's Smoking?

95 It seems to me that, given what is known in the health and medical sphere about the deleterious effects of smoking on human health, it is difficult to argue that advice to stop smoking given by health practitioners to their patients, particular to patients with serious co­morbidities, can be described other than as health care.

96 However, the settling up of a framework to effectively enforce that advice, and to police the following of the advice, is of an entirely different character.

97 Over time, there have been a number of specific types of decisions that have been separated out of the notion of 'medical or health care treatment' and have been made the subject of specific forms of authority by the Tribunal and its predecessor. They are matters which, whilst in a sense health related, relate more to social or physical control or restriction. Examples include decisions by guardians to consent to contraception in women; decisions to consent to the administration of sex drive control medication in men; decisions to consent to physical examination and the taking of body tissue and fluid samples where there is an allegation of sexual assault; decisions to consent to the use of physical or pharmacological restraint of a person, and including, in an instance where a warrant was being sought by the PA to remove a represented person from premises, authority to require the represented person to submit to assessment by a psychiatrist and, if necessary, the authority to consent to the restraint and/or sedation of the represented person to facilitate such an assessment and his transport to a suitable medical practice, clinic or hospital for that purpose. Restrictions on a represented person's right to travel (which are often health related) and associated passport control orders are also the subject of specific authority because of their restrictive nature.

98 In my view, the smoking conditions fall into this category of decisions. They are, in a sense, health related in that they are borne out of a concern for P's health, and they are necessitated by the lack of insight that comes from his mental illness and the 'drive' that comes from his addiction, but, in my view, they are themselves not health care decisions. In that respect, I disagree with the line of thinking behind the submission of MH (to which I will refer) who seeks to argue that these types of considerations are enough to make the smoking regime conditions constitute treatment decisions under the MH Act.

99 In my view, if restrictions of this sort are to be imposed on P, as they are qualitatively different in nature from treatment decisions, they require a stand­alone authority if they are decisions to be imposed by a guardian. In my view, the smoking conditions form part of a plan of management that restricts P's personal rights and, as such, are properly something with respect to which a guardian should have specific authority to either consent or to withhold consent.

100 In my view, they are decisions for which an independent guardian should have authority under the GA Act.

101 I reject the argument put by MA that there is an alternative mechanism available for the making of this decision ­ namely, the taking of the decision by the Chief Psychiatrist or his delegate under the MH Act, as a medical or psychosocial intervention ' … to alleviate or prevent the deterioration of … a condition that is a consequence of a mental illness'.

102 This is because, in my view, the decisions are not decisions that fall within the s 4 definition of 'treatment' in the MH Act. The mechanism is therefore not available as an alternative.

103 It is not suggested by MA that the smoking conditions constitute treatment 'to alleviate or prevent the deterioration of a mental illness'. Dr NG agrees that smoking is not a mental illness. To the extent that it therefore needs to be addressed, I find that the smoking conditions do not meet the first limb of the definition.

104 In my view, the smoking conditions do not meet the second limb either. The second limb refers to 'treatment to alleviate or prevent the deterioration of … a condition that is a consequence of a mental illness'.

105 The Macquarie Dictionary defines 'consequence' as 'the act or fact of following as an effect or result of something antecedent; that which so follows; an effect or result'.

106 For the MH Act definition to be met, that which is being treated must be 'a condition that is an effect or result of a mental illness'. In other words, it is necessary to identify 'the condition' at which smoking regime conditions are aimed, the purpose of the smoking conditions must be to alleviate ­ or at least to prevent the deterioration of ­ the condition, and that condition must be something that exists as an effect or result of mental illness for the definition to be met.

107 P has a number of physical conditions: asthma, COPD, sleep apnoea, metabolic syndrome and obesity, diabetes and possibly a cardiac condition. He also has hypoxic brain damage. He is also addicted to smoking.

108 Notwithstanding Dr NG's use of the broad term 'physical health' assistance when describing the aim of the smoking regime, the evidence indicates clearly that the smoking regime conditions have been developed in response to the concerns of the Respiratory Team about the very serious 'near death' respiratory crises that have occurred for P. I am satisfied that it is the alleviation, or perhaps more correctly in this case, the prevention of deterioration in P's respiratory disease at which the smoking regime conditions are aimed. The 'condition' for the purpose of the section is the respiratory disease. There is no specific evidence that the smoking regime conditions are directed at the alleviation of any of his other physical conditions, although one can imagine that less smoking might have some general benefits with respect to at least some of the other conditions. In my view, to meet the criteria 'treatment … to alleviate or prevent the deterioration of … a condition', the treatment must be specifically directed at the alleviation of or preventing deterioration in the condition.

109 Further, in my view, it is necessary for there to be a connection between the 'condition' being treated and the person's mental illness, and for the definition to be met; that is, the 'consequence' established. There is no evidence that P's respiratory disease is 'a consequence of' ­ that is, an effect or result of ­ his mental illness. Given the stated purposes of the MH Act which are 'to provide for the treatment, care, support and protection of people who have a mental illness', which is, in turn, defined in s 6 of the MH Act as 'a condition that is characterised by a disturbance of thought, mood, volition, perception, orientation or memory and … [which] significantly impairs (temporarily or permanently) the person's judgment or behaviour', and the restrictive powers that are available under it, it seems to me that the connection between the mental illness and the condition must be a direct causative connection in the nature of a clinical link recognised in medicine. By way of example, if as a result of a psychosis, a person has somatic delusions that there are ants crawling about under his skin and, as a consequence, he is tearing and gouging at the surface of the skin in search of imagined relief, the dressing and managing of those wounds would be treatment of a condition that is a consequence of mental illness. DC, in her submission, uses the example of Psychogenic Polydipsia, where compulsive drinking of water caused by mental illness is managed by limiting access to water sources to prevent excessive drinking and deterioration in the person's physical condition.

110 In my view, a lack of insight and judgment alone that may exist as a consequence of mental illness and that might lead a person to make flawed decisions such as to smoke more cigarettes than is good for them or to eat a lot of sugar laden foods than they should, is not enough. I agree with DC in this regard. In those situations, the mental illness may be causing the lack of insight or judgment, but that does not make the person's smoking habits or their obesity 'a condition consequent upon their mental illness' (Tribunal emphasis). In my view the link is not direct enough. There is no evidence linking P's respiratory disease with his mental illness in this direct causative way.

111 I am not persuaded that P is being 'treated' by the imposition of the smoking conditions for a condition that is a consequence of mental illness. I am not satisfied therefore that the smoking regime conditions constitute 'treatment' under the MH Act.

Conclusion

112 It is therefore my view that there is a vacuum in the decision­making authorities for P. At present, in my view, neither the guardian nor the Chief Psychiatrist has authority to make a decision to impose the smoking regime conditions, and it is necessary for the guardianship order to be augmented to allow the guardian to consider all of the available information, including P's wishes, the opinions of the Respiratory Team and also of the treating team at GH who have the responsibility to treat P and, as part of that, to safely house and care for him at present, to then make a decision about whether to consent to the conditions as presently outlined or not and, where not, to broker, and if possible to negotiate, alternatives in the best interests of P.

Psychosocial intervention

113 Before the smoking regime conditions could meet the MH Act definition of 'treatment', it would, in addition, be necessary for the measures in place to be found to fall within the meaning of 'medical' or 'psychosocial' interventions. I propose to make brief comment on this matter.

114 For reasons that I have canvassed above, I do not think the smoking conditions constitute 'medical' treatment. I am unaware of any reported decisions clarifying the definition of 'psychosocial' intervention under the MH Act.

115 Turning to the ordinary use of the words, the Collins English Dictionary (Online) defines 'psychosocial' as:

of or relating to processes or factors that are both social and psychological in origin[.]

116 The American Heritage Stedman's Medical Dictionary provides the following definition:

Involving aspects of both social and psychological behaviour[.]

117 Both definitions clearly provide a very broad sweep, particularly if the definition of 'social' is taken from the Collins English Dictionary, that is:

of, relating to, or characteristic of the experience, behaviour, and interaction of persons forming groups[.]

118 Although the determination is not necessary for this case, my view is that the sorts of restrictions that are encompassed within the smoking regime conditions do not constitute an intervention which could be said to have the characteristics incorporated in the definitions abovementioned. The conditions involve limits on P personally, his rights and his physical activities. They are not directed to an end relating to his social interactions with others or his psychological wellbeing, but directed specifically at limiting his smoking of tobacco. In my view, if it were necessary for this case, I would find that that the smoking regime conditions do not constitute 'psychosocial interventions' or 'medical interventions', and so that aspect of the definition of 'treatment' under the MH Act had not been met either.

Best interests

119 Before I could augment the guardianship order, I would need to make a finding that to do so would be in P's best interests.

120 The fundamental principle guiding the decision of the Tribunal must ultimately be the best interests of the represented person.

121 Section 4(2) of the GA Act enshrines this in the legislation as the 'primary concern' of the Tribunal.

122 MA submitted that it is in P's best interests that I do not augment the guardianship order, but rather, allow the decision to be taken under the MH Act.

123 I propose to address MA's submissions in this regard for completeness.

124 I reject MA's submission for a number of reasons:

1) The decision­maker himself under the MH Act, namely Dr NG, feels that the smoking regime decisions are decisions that should be made by an independent decision­maker rather than by him as the Chief Psychiatrist. It is not in the best interests of P that he be placed in a situation where such a dilemma exists for Dr NG.

2) There is an apparent conflict in the advice as to what steps in relation to P's smoking are in his best interests. The Respiratory Team wants P to cease smoking altogether. The treating team at GH has negotiated a regime that allows P to continue to smoke. There appear to have been a number of factors in play in reaching this decision firstly, P's articulated wishes; secondly, given P's aggressive tendencies as described in Dr RD's report, and in particular, his assaultive behaviour on staff, there are clear occupational health and safety issues in relation to hospital staff. There are also potential issues in relation to the safety of other patients, given P's potential for aggression and his known tendencies to approach other patients for cigarettes. Further, issues about staffing must unavoidably bear on the decision­making about supervision. There is clear information from Dr RD that, now with ground access, P bargaining with other patients and picking up butts is leadinghim to smoke up to 30 cigarettes a day rather than the seven per day that the smoking regime conditions mandate. These matters must unavoidably bear upon the Chief Psychiatrist in managing his overall responsibilities for the running of GH and his individual responsibility to P.


In my view, these factors may result in actual conflicts of interest, and certainly result in apparent conflicts of interest that affect Dr NG in his role as Chief Psychiatrist. This makes it essential in the best interests of P that there is an independent decision­maker to act in P's best interests. I do not accept MA's submission that the advocacy available to P through the Mental Health Advocate's office plus the availability of regular MHRT reviews was sufficient to safeguard against any conflict of interest and should ameliorate any concern arising from the same.

3) I do not accept, just because the MHRT may have expressed a view in making a decision as to P's involuntary status under the MH Act that the smoking arrangements in its view form part of treatment under the MH Act, that that binds this Tribunal. Nor am I of the view that the finding it made is persuasive. The context of such comment is not clear and, if reasons were written by the MHRT explaining its view, they were not provided to the Tribunal. The Tribunal had the benefit of Dr RD's report to the MHRT. What does appear clear from the report is that there may have been a number of reasons justifying the maintenance of P's involuntary status, and so the significance of any such comment by the Tribunal in the context of its decision ­ whether it was the ratio decidendi or just comment obiter dicta ­ is not clear.

4) MA's submission that the Tribunal should have regard to a potential outcome of a possible submission or argument that might be put to the MHRT at some point in the future regarding P's release on a CTO is, in my view, too remote a matter to persuade me that the actions of this Tribunal might be counter to his best interests. This is so, particularly in the context of evidence that there are no discharge options available for P because of the difficulties in effectively treating his psychiatric symptoms and the complexity of managing his physical illnesses andconditions, given the smoking and oxygen supply issues.

5) I reject the submission that 'the guardian would, more than likely[,] follow the advice of the GH treating team'. A guardian is obliged to act in the best interests of a represented person. I have every confidence in the independence and thoroughness of the PA. In this very case, we have an example of where the guardian did not accept a treatment change (the code blue levels decision) as being in the best interests of P just because a treating team made the recommendation. It is clear that in this case there have been two views expressed as to what is in P's best interests regarding his smoking. It is, of course, the case that a guardian has a responsibility to consider the professional advice offered. A guardian can seek other advice by way of second opinion. There is no evidence which would entitle one to assume that a guardian, in the exercise of his or her judgment, will follow one or other view slavishly, without a proper consideration of the merits of that view in P's best interests.

6) Nor am I persuaded, because of a possibility that, in the face of a decision by a duly appointed guardian that was not to the GH treating team's liking, on the strength of a possible ongoing argument that they still had authority around the smoking conditions under the MH Act, the treating team, in the exercise of some sort of notion of duty of care that they might feel they owed to P, might seek to impose their own treatment, that this would be a reason to not augment the guardianship order in P's best interests. This also is too remote and uncertain a matter to persuade me that the actions of this Tribunal in augmenting the guardianship order might be counter to his best interests.

7) Nor am I satisfied that issues relating to the regularity of automatic view in the MHRT as opposed to the Tribunal, or the level of access that P has to the MHA service, sufficiently tilt the balance in favour of not augmenting the guardianship order in all the circumstances.

8) MA's final point was that, somehow, the notion of the appointment of a statutory guardian such as the PA, even accepting, as he appeared to do, that the PA was independent of government, wasinconsistent with the stated purpose of the MH Act and the United Nations (UN) Charter. He submitted that where the MH Act refers to the involvement of guardians in treatment, the meaning of 'guardian' in this context should, by reason of the reference to the involvement of 'carers and families' in providing support in the title to the MH Act, be limited to persons who are connected to a person with mental illness and who fall into those categories, rather than to a statutory State-appointed guardian. I do not agree. I see no logical basis for limiting the category of guardians who may assist a person with a mental illness in this way, and there is nothing in either piece of legislation that is indicative of that intent.


As to the UN Charter, MA submitted that to have a state appointed state official as both advocate and decision­maker for a person with a mental illness is contrary to the UN Charter and thus not in P's best interests. Other than as a general statement, MA did not elaborate on this argument. When appointed, the role of a limited guardian is to exercise such functions as are vested in him or her by the Tribunal. In the context of functions that principally involve decision­making, any advocacy role is in the context of that decision­making only. Unlike perhaps a plenary guardian, a limited guardian has no overall responsibility as advocate for the person the subject of the order. In any event, the PA is an independent office created by statute, and accountable ultimately to the Western Australian Parliament via the Attorney General. In relation to duties performed as guardian, the actions of the PA's delegate (who acts as guardian) in the role are at all times reviewable by the Tribunal, which is itself an independent tribunal created by statute. I do not accept that the situation that will occur for P if the existing limited guardianship order is augmented willconstitute a breach of the UN Charter.

9) I am persuaded that, on balance of all matters, it is in P's best interests to have an independent guardian to make decisions regarding the smoking issues rather than the Chief Psychiatrist, and would make such a finding if it were necessary in this matter.

Orders

The Tribunal declares that [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 or for the protection of others; and

(d) is in need of a guardian,

and the Tribunal orders that:

The guardianship order dated 2 March 2016 is amended so that it now reads:

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;

(c) Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person;

(d) To determine the services to which the represented person should have access;

(e) To negotiate with the represented person's treating doctors with regard to and to consent to or to withhold consent to the terms of any management or care plan in place regarding the represented person from time to time insofar as the provisions of such a plan or any of them seek to impose


a complete ban on him smoking; or

restrictions on


(i) the number of tobacco cigarettes that he is allowed to smoke during any defined period; or

(ii) his right to reasonable unescorted ground access where the purpose of the restriction is solely to prevent him smoking; or

(iii) his right to receive and hold funds approved for release to him by way of personal spending money by his Administrator (his allowance) where the purpose of the restriction is solely to prevent him spending money unsupervised on cigarettes; or

(iv) his right to utilise funds from his allowance to purchase tobacco cigarettes, whether from individuals or from a shop or canteen; and

(v) any associated matters.

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. Reasons for Decision will be published and released to the parties by 7 October 2016.

4. The guardianship order is to be reviewed by 4 February 2019.

I certify that this and the preceding [124] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS H LESLIE, MEMBER