PG
[2014] WASAT 66
•26 APRIL 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: PG [2014] WASAT 66
MEMBER: MS D TAYLOR (SENIOR MEMBER)
HEARD: 26 APRIL 2014
DELIVERED : 26 APRIL 2014
PUBLISHED : 6 JUNE 2014
FILE NO/S: GAA 1657 of 2014
BETWEEN :PG
Represented Person
Catchwords:
Guardianship Involuntary patient Mental illness Sexual assault in hospital Urgent hearing Need for a guardian to make decisions not authorised under the Mental Health Act 1996 (WA) Chief Psychiatrist
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(3)(c), s 41, s 43, s 44, Div 3, Pt 5
Mental Health Act 1966 (WA), s 26, s 110
State Administrative Tribunal Act 2004 (WA), s 9, s 32
Result:
Public Advocate appointed limited guardian
Summary of Tribunal's decision:
The Public Advocate was appointed guardian for an involuntary patient detained in hospital for treatment of a mental illness, under s 26 of the Mental Health Act 1996 (WA), who was the suspected victim of a sexual assault by another involuntary patient detained on the same ward. A member of staff discovered the patients engaged in sexual intercourse in the female patient's room and intervened to separate them. Whilst the circumstances in which the male patient came to have access to the female patient in her room were unclear and the female patient proved incapable of giving a coherent account of the incident because of her disturbed mental state, the treating team suspected the male patient had sexually assaulted the female patient.
After consulting the Chief Psychiatrist and staff at the Sexual Assault Resource Centre, Dr AB, on behalf of the hospital, applied to the Tribunal for an order to be made appointing a guardian for the female patient, to make decisions on her behalf in relation to the range of issues that arose because of the alleged assault that were otherwise unrelated to her mental illness and treatment as an involuntary patient.
The Tribunal convened a hearing at short notice, out of usual business hours, because of the urgent nature of the application.
The Tribunal appointed the Public Advocate guardian to make decisions regarding the represented person's accommodation and medical treatment (not covered by the provisions of the Mental Health Act 1996 (WA)) and to decide what contact she should have with other persons. It also vested authority in the guardian to consent to the use of chemical or physical restraint, as it appeared that the represented person's restricted liberty may have been curtailed further, because she continued to be nursed on the same ward as her alleged assailant.
The Tribunal considered that the represented person's health and safety would be promoted and protected if an independent guardian were able to make decisions about the propriety of the arrangements in place for her care.
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
RG [2006] WASAT 265
REASONS FOR DECISION OF THE TRIBUNAL:
Background to the application
On Friday 25 April 2014 (a public holiday), a member of the treating team at a hospital authorised to detain patients for assessment and treatment of a mental illness under the provisions of the Mental Health Act 1996 (WA) (MH Act) telephoned the Tribunal to alert it to an impending application for the appointment of a guardian for an involuntary patient who was believed to have been the victim of a sexual assault by another involuntary patient on the same ward the previous evening. An urgent hearing was requested because the patient was unable to consent to assessment and treatment consequent upon the suspected assault because of her mental state, and because a number of decisions regarding issues concerning her arising from the incident needed to be made without delay. Whilst the provisions of the MH Act enabled the patient's mental illness to be treated without her consent, it did not permit investigation or treatment of health matters unconnected with her mental illness, such as the examination of her vagina for injury and screening for sexually transmitted diseases.
An application form completed by Dr AB on behalf of the treating team on 25 April 2014 sought the appointment of a guardian under the provisions of the Guardianship and Administration Act 1990 (WA) (GA Act) to make decisions for the patient about accommodation, medical treatment, access to services and contact with others. According to Dr AB, the patient was experiencing a major depressive episode with psychotic features of such severity as to require treatment in hospital as an involuntary patient and, as a result, her capacity to make judgments about matters affecting her was impaired. Dr AB indicated that the patient did not comprehend fully what was going on.
The Tribunal's jurisdiction to make orders on an urgent basis
The Tribunal is required to make decisions fairly and according to the substantial merits of the case. It has a mandate to act as speedily and with as little formality and technicality as is practicable (s 9 of the State Administrative Tribunal Act 2004 (WA) (SAT Act)). In proceedings under the GA Act, it is bound by the rules of natural justice (s 32 of the SAT Act).
The GA Act provides for at least 14 days' notice of the hearing of an application for the appointment of a guardian to be given in every case to the applicant, the person in respect of whom the application is made, the nearest relative of that person, the Public Advocate, and any other person with a proper interest in the proceedings (s 41(1)(a) of the GA Act).
The notice period may be shortened where the Tribunal considers exceptional circumstances exist that justify a lesser notice period being given (s 41(3)(a) of the GA Act).
The requirement to give notice of the application for the appointment of a guardian to any person apart from the applicant, the person the subject of the application and the Public Advocate may be dispensed with where the Tribunal considers exceptional circumstances exist that justify a departure from the standard notice provisions (s 41(1)(d) of the GA Act). This means that the Tribunal may, in exceptional circumstances, dispense with the requirement to give notice of the hearing to the person's nearest relative and any other interested family member or friend.
Because of the grave nature of the issues outlined by the representative of the treating team in her conversation with the Tribunal staff member on 25 April 2014 and the need for decisions regarding assessment of injury to be made without delay, notice of the hearing on 26 April 2014 was given to the applicant and the Public Advocate by telephone on 25 April 2014.
Written notice of the hearing on 26 April 2014 was given to the patient by a member of the treating team prior to the hearing on 26 April 2014.
The Tribunal dispensed with the need to provide notice of the hearing to the patient's nearest relative because one had not been identified at the time of the hearing. Information regarding her family members was not readily available and nothing was known about her marital status or religion.
A cautious approach to the dissemination of information about the patient's physical condition to her family members was thought to be in her best interests, at least until the Public Advocate could make some enquiries and assess whether the dissemination of such information would have an adverse impact on the patient's reputation and standing within her community.
The hearing
On Saturday 26 April 2014, the Tribunal convened at 10 am to hear the application.
The Public Advocate's duty guardian attended the hearing in person.
Dr CD attended the hearing by telephone on behalf of the applicant in his capacity as duty psychiatrist in the treating team. The totality of the information available to the Tribunal provided by Dr AB in writing or by Dr CD at the hearing is summarised below.
The application concerned PG, a 63‑year‑old woman of Asian descent who had been admitted to hospital in mid‑April as an involuntary patient (see s 26 of the MH Act) for the first time for treatment of a major depressive episode with psychotic features. Her admission was against her will and had occurred in the context of family members reporting an escalation in conflict attendant upon a marked deterioration in PG's mental state over time. She was described as having behaved out of character when she shouted at family members and was aggressive towards them. During her admission, she exhibited symptoms of a psychotic illness and a mood disorder, with the precise nature of her illness being the subject of ongoing assessment and discussion.
According to the information in the application form, PG had a daughter and a son who also lived in Perth. Her daughter was said to be supportive of her treatment.
According to Dr CD, PG was being treated on a mixed (male and female patients) locked ward with another involuntary patient, an aggressive indigenous man with a mild intellectual impairment and brain damage. On Thursday evening (24 April 2014), a member of staff discovered this man in PG's room lying on top of her engaged in sexual intercourse. The genitals of both patients were exposed and the staff member intervened to pull the man off PG. It had proved impossible for the treating team to ascertain from PG directly what had occurred, as she was described as being mute and catatonic. The circumstances in which the male patient came to have access to her room were unclear.
Immediately following the incident, blood and urine samples were taken from PG.
The treating team suspected PG to be the victim of a sexual assault.
According to Dr CD, neither patient had capacity to consent to sexual intercourse because of their impaired mental states. They remained on the same ward, but were being kept apart, with PG being the subject of one‑to‑one observation.
Dr CD explained the background to the application in the following terms. During the evening on 24 April 2014, the treating team consulted the Chief Psychiatrist and the Sexual Assault Resource Centre (SARC) for advice as to the steps it should take to ensure that it met its duty of care to PG. It wished to examine PG for evidence of injury and a sexually transmitted disease not connected with her mental illness, and so required consent for examination and treatment to occur to be given either by the Chief Psychiatrist (s 110 of the MH Act) or an appointed guardian (s 43 of the GA Act). It was also mindful of the need to reconsider whether the arrangements in place for PG's day‑to‑day care and accommodation were optimal in the light of the harm to which she was believed to have been exposed on the ward, given the expectation that she would remain on the same locked ward for the duration of her treatment as an involuntary patient. To that end, the treating team sought the appointment of a guardian to make decisions about where PG should reside and with whom, whether on a permanent or temporary basis, and to decide with whom she should have contact and what, if any, additional services should be put in place for her benefit.
There was no real possibility of anyone in the treating team ascertaining PG's wishes and views about the application because of her mute and confused state.
Submissions on behalf of the Public Advocate
The duty guardian supported the making of an order appointing the Public Advocate limited guardian for the patient to make decisions about matters that arose as a result of the suspected assault and that fell outside the operation of the MH Act.
The relevant legislation
The GA Act is protective legislation designed to ensure that the rights and interests of vulnerable adult members of society are upheld and promoted. It requires the Tribunal to put the best interests of any represented person or person in respect of whom an application is made before any other consideration.
Section 4 of the GA Act contains a statutory presumption that every person has the capacity to make decisions regarding matters concerning his health and lifestyle that must be displaced before the Tribunal can make any order appointing someone else to make decisions on his behalf. Section 4(3) provides:
Every person shall be presumed to be capable of ‑
(a)looking after his own health and safety; [and]
(b)making reasonable judgments in respect of matters relating to his person[.]
Where the Tribunal is satisfied that the presumption of capacity is displaced and the person is in need of a guardian (s 43 of the GA Act), it may appoint a substitute decision‑maker to make decisions on behalf of the person, provided it is satisfied that his identified needs cannot be met by other means less restrictive of his freedom of decision and action (s 4(3)(c) of the GA Act).
The GA Act contemplates in the first instance the appointment of an adult such as a family member or friend who knows the person needing a guardian and has a good relationship with them. The guardian must agree to the appointment and must have satisfied the Tribunal that, among other things, he will act in the best interests of the person he represents. The Tribunal may appoint the Public Advocate as guardian where there is no one else suitable and willing to act (s 44 of the GA Act).
Findings
PG is a person in respect of whom the presumption of capacity is displaced because she is suffering from a mental illness of such severity as to justify her detention in an authorised hospital for treatment under the provisions of the MH Act. She displays symptoms of psychosis that may flow solely from the illness that justified her detention under the MH Act, or may be due, in part, to traumatic events that have occurred since her detention on the ward. PG's current behaviour ‑ described as mute and catatonic ‑ is indicative of a severely compromised mental state that is at odds with the ability to make informed and reasonable decisions.
PG requires assessment and possible treatment for injuries sustained as a result of an alleged sexual assault that occurred whilst she was detained on a locked ward in the care of the hospital authorities.
PG needs a substitute decision‑maker (guardian) appointed without delay who can undertake a prompt and independent assessment of PG's current circumstances and put in place arrangements that would best promote her welfare. Authority to make decisions about treatment and where PG should reside and with whom, and whether on a temporary or permanent basis, should be vested in her guardian, not with the intention of usurping the provisions of the MH Act even if that were possible, but to ensure that the arrangements for PG's treatment and accommodation are optimal. Given the decision to continue to nurse purported victim and alleged assailant on the same locked ward, PG requires an independent advocate with strong voice to be party to any discussions and decisions about her future treatment and care so as to ensure that her liberty is not restricted for reasons other than those that justify her detention as an involuntary patient. The issue of restraint should be considered openly by the guardian and the hospital authorities so that there is no suggestion that PG is being restrained, either chemically by way of sedation or physically by way of confinement in her room, to serve purposes not connected with the treatment of her mental illness.
PG requires a decision‑maker whose ability to act in her best interests is not compromised by other considerations.
The guardian should have authority to regulate PG's contact with other persons because of her current circumstances. The impact of the alleged assault on PG's reputation and standing in her family and community if it were to become known will need to be considered by her guardian as a matter of some urgency so as to ensure that her safety is not compromised.
In the immediate to short term, PG's needs will be met by the hospital authorities. To that end, a guardian with authority to make decisions about services other than those provided by the hospital as part of PG's treatment is not currently required.
There is insufficient information available to enable a view to be formed about PG's current relationship with family members and their level of involvement in her treatment. The appointment of the Public Advocate as PG's guardian is in her best interests for a short period to enable urgent decisions to be made and her circumstances to be investigated and assessed. PG's privacy will be preserved by the appointment of an independent guardian until such time more information is available.
Discussion
Because of the urgent nature of the hearing, there was little, if any, discussion with Dr CD not directly relevant to the issues to be determined. To that end, the Tribunal assumed that the Chief Psychiatrist supported the application for the appointment of a guardian because he considered it inappropriate to approve medical treatment for PG for matters not related to her mental illness (as the provisions of s 110 of the MH Act would permit him to do) in the particular circumstances that pertained, not least because the decisions that might need to be taken as a result of the alleged assault went far beyond the limited ambit of medical treatment.
An early assessment of the case by the Tribunal's urgent business manager (out of hours) identified a number of potential decisions a guardian might need to make that included decisions about accommodation and contact with other persons.
The Tribunal considered the overlap between the MH Act and the GA Act in RG [2006] WASAT 265 (RG). Whilst the decision in RG concerned a patient living in the community on a community treatment order, the Tribunal made a helpful observation at [78] about the steps that a guardian might take when advocating on behalf of a represented person with a hospital authority. It observed that how treatment is delivered is a question in the first instance for those exercising authority over a represented person under the MH Act, and that where the Public Advocate as guardian has a view contrary to those of the hospital authority as to how the needs of a represented person will best be met, it is open to the Public Advocate to address her concern to the appropriate person or body, whether it be the treating psychiatrist, the Chief Psychiatrist or elsewhere.
This observation is relevant to PG's case, as central to any decision about whether her needs can best be met by continuity of her current accommodation will be an assessment of the risks that exist by virtue of her remaining in reasonably close proximity to her alleged assailant. Relevant to the question of PG's accommodation is consideration of her safety in her current environment, given her recent experience. At [83], the member said the following:
The guardian vested with the authority to decide where a person is to live exercises a choice, if that is able to be exercised, on her behalf in her best interests as to where she should live. The factors in s 51 of the GA Act, which elaborate the obligation on the guardian to act in the best interests of the represented person, will be considered by the guardian when exercising that choice and go beyond the treatment and management of the represented person's mental illness. Despite what presently appears to be the pervasiveness of the effects of her illness on all aspect of her life, the represented person's living situation cannot be reduced simply to the treatment of her illness.
There is no doubt that in her current mute and catatonic state, PG needs a guardian to make decisions on her behalf and to protect her interests. However, because of the nature of the hearing, PG's guardian should have authority only to meet the needs as they arise in the current crisis but not otherwise. This is because when a hearing is convened at short notice and parties who would ordinarily be notified about the hearing have been afforded no notice of the hearing nor opportunity to be heard, a balance needs to be struck between the need to ensure that the represented person's needs are met without delay and the lack of opportunity that will thereby be afforded persons close to the represented person to make a contribution to the body of information available to the Tribunal and upon which its decision is based.
In circumstances where little, if anything, is known about PG's family and personal circumstances, and given the nature of the crisis that drives the application, PG's best interests will be served, at least for now, by the Tribunal making orders that will, among other things, preserve her privacy insofar as it relates to medical treatment. The Tribunal is mindful of the potential impact information regarding what may have transpired at the hospital on the evening of 25 April 2014 may have on PG's reputation and standing within her family and community. In these circumstances, it is best to approach dissemination of information on a cautious basis.
Orders
The Tribunal makes the following orders:
1.The time for service of notice of the application is shortened pursuant to s 41(3)(a) of the Guardianship and Administration Act 1990 (WA).
2.The requirement for notice to be given to the nearest relative of the represented person under s 41(3)(b) of the Guardianship and Administration Act 1990 (WA) be dispensed with.
3.The Public Advocate of Level 2, International House, 26 St Georges Terrace, 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 what contact, if any, the represented person should have with others and the extent of that contact; and
(e)to consent to the use of chemical or physical restraint in respect of the represented person and to decide matters incidental thereto.
4.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.
5.This order is to be reviewed by 26 June 2014.
I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D TAYLOR, SENIOR MEMBER
0