PN
[2008] WASAT 158
•4 JULY 2008
PN [2008] WASAT 158
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 158 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:651/2008 | 27 MAY 2008 | |
| Coram: | MS J TOOHEY (SENIOR MEMBER) MS F CHILD (MEMBER) MS J STANTON (SENIOR SESSIONAL MEMBER) | 4/07/08 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appointment of a community guardian confirmed with additional authority to consent to use of chemical or physical restraint | ||
| B | |||
| PDF Version |
| Parties: | PN |
Catchwords: | Guardianship Community guardian Restraint Whether additional authority required to consent to use of chemical restraint |
Legislation: | Guardianship and Administration Act 1990 (WA), Pt 5 Div 3 |
Case References: | BCB [2002] WAGAB 1 JP [2008] WASAT 3 PN [2008] WASAT 32 |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : PN [2008] WASAT 158 MEMBER : MS J TOOHEY (SENIOR MEMBER)
- MS F CHILD (MEMBER)
MS J STANTON (SENIOR SESSIONAL MEMBER)
- GAA 680 of 2008
- Represented Person
Catchwords:
Guardianship - Community guardian - Restraint - Whether additional authority required to consent to use of chemical restraint
Legislation:
Guardianship and Administration Act 1990 (WA), Pt 5 Div 3
Result:
Appointment of a community guardian confirmed with additional authority to consent to use of chemical or physical restraint
(Page 2)
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
BCB [2002] WAGAB 1
JP [2008] WASAT 3
PN [2008] WASAT 32
(Page 3)
Summary of Tribunal's decision
1 On an application by the Public Advocate, the Tribunal revoked her appointment to consent to treatment for PN and appointed a community guardian in her place. A question arose in the course of the hearing as to whether certain medications that PN had taken over many years to manage outbursts of aggression could be considered chemical restraint and whether the guardian needed additional authority in relation to them.
2 The Tribunal appointed the community guardian for three months to consent to treatment and asked the Public Advocate to obtain further information about the medications.
3 At the subsequent hearing the Tribunal was satisfied that the medications could be considered to be for the purpose of restraint and outside the meaning of treatment in the Guardianship and Administration Act 1990 (WA). It reappointed the community guardian and gave him additional authority to consent to the use of chemical or physical restraint.
Background
4 On 21 January 2008 the Tribunal revoked the Public Advocate's appointment as limited guardian for PN and appointed in her place a community guardian, ST. The Tribunal's written reasons for that decision are published as PN [2008] WASAT 32.
5 The Public Advocate had for some years had authority to consent on PN's behalf to medical treatment. ST was given the same authority under the order appointing him.
6 At the hearing, a question arose as to whether any of PN's medication might be considered chemical restraint, rather than treatment within the meaning of the Guardianship and Administration Act 1990 (WA) (the Act).
7 The question arose because a report from one of PN's doctors referred to medications he was taking for his "schizo-affective disorder which probably underpinned his outbursts of aggression". According to the report, the medications "were not for chemical restraint".
8 There was no other information before the Tribunal about the diagnosis of schizo-affective disorder and very little about the medication and the Tribunal considered it needed further information in order to determine whether the guardian needed additional authority in relation to restraint.
(Page 4)
9 The Tribunal therefore appointed ST guardian for three months to consent to treatment and asked the Public Advocate to obtain further information about PN's medications and the question of chemical restraint.
10 Reasons for decision
11 The Public Advocate has subsequently obtained information from the Disability Services Commission about PN's diagnosis and treatment. In a letter to the Public Advocate, the Commission advises that, according to its records, PN has been prescribed medication for "behaviour management" since 1990; in reviewing the Commission files, however, it has been noted that PN had "no psychiatric diagnosis".
12 The Public Advocate recommends that, given the conflicting information about whether PN has a psychiatric diagnosis, and the ambiguity about whether any of his medications could be considered chemical restraint, the guardian should be given additional authority to consent to chemical restraint.
13 The question of whether medication administered for purposes of managing behaviour such as outbursts of aggression is treatment within the meaning of the Act, or something else - sometimes referred to "chemical restraint" - is a matter on which there will likely always be differing views. On one view, lines should not be drawn artificially: managing outbursts of aggression by means of medication is part of a person's treatment and care, and a guardian with authority to consent to treatment can lawfully consent to chemical restraint. On a narrower definition of "treatment", medication for behaviour management is different from, and requires separate authority to, treatment.
14 This issue has been dealt with at length including in decisions of the Guardianship and Administration Board in BCB [2002] WAGAB 1 and of this tribunal in JP [2008] WASAT 3.
15 In the present case, the Tribunal is satisfied that, in the absence of diagnosis of a psychiatric condition, the medication prescribed for PN to control his outbursts of aggression can be considered for the purpose of restraint and outside the meaning of treatment in the Act. ST therefore needs specific authority to consent to it being administered.
(Page 5)
16 The Tribunal confirms the appointment of ST as limited guardian for PN to consent on his behalf to treatment and amends the order to include additional authority to consent to the use of chemical or physical restraint. For reasons set out in its original decision, the order will be reviewed after 12 months.
Orders
17 The order under review is amended so that it now reads:
1. ST is appointed limited guardian of the represented person with authority:
(i) Subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA), to consent to any treatment or health care of the represented person; and
(ii) To consent to the use of chemical or physical restraint in respect of the represented person and to decide matters incidental thereto.
2. This order is to be reviewed by 27 May 2009.
I certify that this and the preceding [17] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER