PG

[2006] WASAT 256

PG [2006] WASAT 256

Last Update :25/10/2006

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 256
Published:
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:833/2006	Heard:	12 JUNE 2006
Coram:	MS D DEAN (MEMBER)	Delivered:	28/08/2006
No Pages:	10	Judgment Part:	1 of 1
Result:	The guardianship order is revoked
Category:	B

Parties & Catchwords


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : PG [2006] WASAT 256 MEMBER : MS D DEAN (MEMBER) HEARD : 12 JUNE 2006 DELIVERED : 28 AUGUST 2006 FILE NO/S : GAA 833 of 2006 BETWEEN : PG

Proposed Represented Person

Catchwords:

Review of guardianship order – No need for an order – Order revoked

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 84, s 119(3)

Result:

The guardianship order is revoked

(Page 2)

Category: B

Representation:

Counsel:

Proposed Represented Person : Self-represented

Solicitors:

Proposed Represented Person : Self-represented

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

Nil

Case(s) also cited:

Nil

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal’s decision

1 In 2001, PG, the represented person, suffered a severe brain injury as the result of an assault by his son. At the time he was living with his third wife, DG, and his two dependent step children. He has four adult children from his first marriage.

2 Subsequent to the assault, PG and his wife separated. A guardianship order was made in 2004 for two years appointing the Public Advocate to make decisions for PG in respect of where and with whom he was to live and what services he was to receive.

3 The order was reviewed after two years. The Tribunal determined that as the accommodation and service decisions had been made and implemented and seemed to be operating in PG's best interests there was no further need for an order.

4 The Tribunal therefore dismissed the guardianship order on the basis that there was no further need for an order.

Background

5 On 16 February 2004, a guardianship order was made appointing the Public Advocate limited guardian of PG with the functions of deciding where and with whom he was to live and what educational/training or rehabilitation programs or services he should receive. The order was made for a period of two years.

6 On 12 June 2006, this order was reviewed in accordance with s 84 of the Guardianship and Administration Act 1990 (WA) (GA Act) which ensures that all orders are reviewed periodically.

7 In 2001, PG suffered a severe brain injury as the result of an assault by his son. At the time he was living with his third wife, DG, and his two dependent step children. He has four adult children from his first marriage.

8 Since his brain injury, PG has separated from his wife and currently lives in a unit he owns and which he shares with a boarder

9 These written reasons are being provided at the request of DG, the wife of PG.

(Page 4)

Hearing

10 The hearing was attended by PG, DG, brother of PG, KL and LL, daughters of PG from his first marriage, MC and RB, sisters of PG, SL, sister-in-law of PG, the guardian, and representatives from the Office of the Public Trustee. DG, the wife of PG chose to attend the hearing by teleconference.

11 Prior to the hearing, the Tribunal received written reports from PG's GP, a social worker, his wife, the co-ordinator of the rehabilitation service and the guardian.

12 The GP indicated that she is not sure of PG's capacity to make reasonable lifestyle decisions for himself because she has only seen him twice and therefore not had the opportunity to make a full assessment of his capacity.

13 The social worker outlined the current situation and stated that the guardianship decisions about accommodation and services which had prompted the order made in February 2004 had all been made and successfully implemented. With these things now in place, in her opinion, there is no longer a need for an order. The social worker outlined the family and friends' views in this regard. Some thought there was a need for an ongoing order but most agreed that the need no longer existed.

14 DG provided a written submission to the Tribunal requesting that she attend by teleconference. In her submission, she outlined her reasons for not wanting a member of PG's family appointed as guardian, particularly as she, his wife, is willing to provide medical consents for him.

15 The service co-ordinator reported, that in his opinion, the represented person is well supported by his children and siblings but does not see his wife or hear from her very often. DG explained that she does in fact ring the represented person quite often. This was contested by some family members who stated that there had been a period of three months during which DG had not contacted the represented person.

16 The Public Trustee provided a report of his involvement as plenary administrator of the estate of PG. The administration order is to be reviewed in November 2009.

17 The guardian provided a report to the Tribunal in which she stated that PG "has a limited insight into his perceived current level of functioning". His family and friends report that he "continues to be very

(Page 5)

vulnerable to the emotional influence of others in relation to day to day decisions". The guardian also reported on her involvement with the represented person and outlined the decisions she had made and implemented since being appointed limited guardian in February 2004.

18 She stated that in her opinion the current accommodation arrangements for PG are working in his best interests and any attempt or plan on his part to change this would be monitored by his family and would also require input from the Public Trustee who, as administrator of the estate, would be making any financial decisions in the best interests of PG. PG will continue to receive support from Disability Services Commission for some time. This will consist of a minimum of monthly contact and will also provide some monitoring of PG's coping and living skills.

19 In summary, the Public Advocate stated that, given that there are no longer any outstanding guardianship issues or decisions to make and the family and Disability Services Commission will continue to be involved and monitor PG's welfare and health, in her opinion there is no current need for a guardianship order.

20 Although there are currently no outstanding health issues or decisions to make in that regard, if PG is unable to make medical decisions in the future his wife, DG, has the authority to do so under s 119 of the GA Act.

21 There was some discussion about the complexity of the relationship between PG and his wife DG, given that they live separately and have limited contact. PG insisted that for him the marriage continues and he is hoping for a full reconciliation in the future. PG's children and siblings are concerned at what they see as his unrealistic belief and expectation about a future reconciliation. PG has agreed to see a councillor to discuss the issue of his marital relationship.

22 There was concern expressed in the hearing about the possibility of the son, who has a mental illness which is currently being successfully treated, becoming unwell again and whether this would put PG at risk of another attack from him. The service co-ordinator reassured the Tribunal that if the son became unwell again the mental health service had agreed to notify the family who would then be able to put in place some measures to protect PG.

23 The Tribunal heard from the service co-ordinator that PG "is not able to process information very quickly, that his visual and spatial skills are

(Page 6)

compromised". Also his "perception skills are very poor" in how he "perceives the actions of others". His interpretation of events and actions is compromised which makes him very vulnerable. In addition, PG has both long term and short term memory deficits.

24 It was agreed by all parties that, although PG can make many of his own lifestyle decisions he continues to be very vulnerable and in need of support and guidance in making, and following through with some significant decisions. Fortunately, he has close and supportive family as well as ongoing support from Disability Services Commission.

25 It was agreed that PG is able to make his own decisions in respect of minor medical matters, such as a decision about whether or not to visit a doctor, and can make and attend appointments himself. Family expressed some concern that if a medical emergency occurred and PG was not able to give consent for his treatment, that his wife would be able to do so, but it was agreed that there is currently no reason to believe that this will occur as PG is in good health apart from his cognitive disability. Any life threatening medical emergency of the type raised by the family would be decided by the treating doctor negating the need for a guardian to be appointed at this time.

26 If there is a need for a decision-maker, currently the wife would be the person with that authority under s 119 of the GA Act. It was explained to the family, who expressed concern that DG might not make decisions in what they, the family, believed were in the best interests of PG, that they could, at that point, make an application to the Tribunal for the appointment of a guardian to take on the role of medical decision maker.

27 Some family expressed concern about what they see as the inappropriate influence exerted by DG over PG in some of her decisions in relation to him. They cited the example of the unusual marriage and DG's influence resulting in PG erroneously believing that he and his wife will eventually live together again despite that fact that they do not see one another for any significant couple or family events such as birthdays or Christmas.

28 Family also expressed concern that DG may attempt to influence PG into deciding to move and sell the unit to his financial detriment. After some discussion with the representatives from the Public Trustee it was agreed that the Public Trustee would be the safeguard in this regard as any decision to sell the unit would ultimately be his. The Public Trustee

(Page 7)

assured the family that any proposal to sell the unit would be discussed with the family before any decision was to be made.

Legislation

29 Section 84 of the GA Act states:

"The State Administrative Tribunal shall -

(a) when it makes a guardianship order or an administration order or any order amending, continuing or replacing an order specify a period, not exceeding 5 years from the date of the order, within which the order shall be reviewed; and

(b) ensure that the order is reviewed accordingly."

30 The principles to be observed by the Tribunal when making determinations in relation to guardianship orders are set out in s 4(2) of the Guardianship and Administration Act 1990 (WA).

31 These principles are:

"(2) (a) 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.

(b) Every person shall be presumed to be capable of ¾

(i) looking after his own health and safety;

(ii) making reasonable judgments in respect of matters relating to his person;

(iii) managing his own affairs; and

(iv) making reasonable judgments in respect of matters relating to his estate,

until the contrary is proved to the satisfaction of the State Administrative Tribunal.

(c) A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in

(Page 8)

the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(d) A plenary guardian shall not be appointed under section 43(1) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.

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

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

32 Section 119(3) of the GA Act provides the following hierarchy of persons who may consent to the medical and dental treatment of a person who is unable to consent on their own behalf.

"For the purposes of subsections (1) and (2), the person who may consent to treatment is the first in order of priority of the following persons ¾

(a) a guardian of the person needing the treatment;

(b) the spouse or de facto partner of the person needing the treatment;

(c) a person who, on a regular basis, provides or arranges for domestic services and support to the person needing the treatment but does not receive remuneration for doing so;

(Page 9)

(d) a person who is the nearest relative (other than the spouse or de facto partner) of the person needing the treatment and who maintains a close personal relationship with the person needing the treatment;

(e) any other person who maintains a close personal relationship with the person needing treatment; or

(f) a person prescribed in the regulations."

Findings and reasons

33 The Tribunal accepts, from the evidence provided in the written reports from the rehabilitation social worker, the service co-ordinator and evidence provided at the hearing by all parties that PG continues to be a person for whom an order can be made.

34 The Tribunal found that there is currently no need for an order as the decisions about accommodation and services, for which the original order in February 2004 was made, have been made and implemented. Although it was agreed by all parties that PG continues to be easily influenced by others and vulnerable in regard to his decisions, particularly in the area of accommodation, the Tribunal is confident that the monitoring and supports provided by the family and the Disability Services Commission will provide the safeguard required to ensure that PG continues to live in the most appropriate accommodation and receive any necessary services to enable him to live in a way which is most appropriate for him and his needs.

35 If, in the future, a decision-maker is required in respect of medical matters DG, PG's wife can make these decisions in accordance with s 119 of the GA Act. If family or friends feel these decisions are not being made in PG's best interests any one of them can make an application to the Tribunal for a guardian to be appointed to make medical decisions for PG.

Decision

36 The Tribunal has considered all the evidence provided in the written reports and at the hearing and is satisfied that PG is a person for whom an order can be made but found there is no longer any need for an order.

37 The order of the Tribunal therefore is:

(Page 10)

1. On review under s 84 of the GA Act of an order dated 16 February 2004.

2. The guardianship order made on 16 February 2004 is revoked.

I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS D DEAN, MEMBER