PN
[2008] WASAT 32
•12 FEBRUARY 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: PN [2008] WASAT 32
MEMBER: MS J TOOHEY (SENIOR MEMBER)
MS F CHILD (MEMBER)
MR J JAMES (SENIOR SESSIONAL MEMBER)
HEARD: 21 JANUARY 2008
DELIVERED : 12 FEBRUARY 2008
FILE NO/S: GAA 2437 of 2007
BETWEEN: PN
Represented Person
Catchwords:
Guardianship - Community Guardian Program - Authority to consent to treatment and health care - Close personal relationship - Whether s 119(3) a less restrictive alternative to appointment of a guardian - Appointment of guardian in represented person's best interests - Whether additional authority to consent to chemical restraint required
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2)(c), s 4(2)(f), s 51, s 84, s 97(1)(c), s 119(3)
Result:
Community guardian appointed
Category: B
Representation:
Counsel:
Represented Person : Self-represented
Solicitors:
Represented Person : Self-represented
Case(s) referred to in decision(s):
The Public Advocate and DMS [2008] WASAT 140
The Public Advocate and F [2007] WASAT 183
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Public Advocate asked the Tribunal to revoke her appointment as limited guardian for PN and appoint in her place a community guardian. PN needed someone to consent on his behalf to treatment and health care.
The Tribunal was satisfied that the proposed community guardian, ST, was a suitable person to make decisions on PN's behalf.
The Tribunal considered whether ST's close, personal relationship with PN was such that he would have authority by virtue of s 119(3)(e) of the Guardianship and Administration Act1990 (WA) to consent to treatment on PN's behalf. If so, that would be a less restrictive means of meeting PN's needs than the formal appointment of a guardian.
The Tribunal decided that, as the relationship between ST and PN was relatively new, it was in PN's best interests that ST be appointed his limited guardian. It considered a formal appointment, with the additional protection of the statutory obligations imposed by the Guardianship and Administration Act1990 (WA), and a review of the appointment by the Tribunal, would be in PN's best interests.
A medical report before the Tribunal raised a question as to whether any of PN's medication might be considered chemical restraint for the purposes of managing his occasional aggressive behaviour, rather than treatment or health care; if so, ST might need additional authority.
The Tribunal appointed ST limited guardian for PN for three months, with authority to consent on his behalf to treatment and health care. It asked the Public Advocate to investigate and report at the end of that time as to whether ST needed additional authority in relation to any chemical restraint.
Background
In August 1997, the Guardianship and Administration Board appointed the Public Advocate limited guardian for PN for the purpose of entering into an agreement on his behalf concerning his employment.
In April 1998 the Public Advocate was given additional authority to consent on PN's behalf to any medical or related treatment or health care.
In February 2003, the Guardianship and Administration Board confirmed the Public Advocate's appointment for a further five years.
The order now comes before the State Administrative Tribunal (the Tribunal) for review in accordance with s 84 of the Guardianship and Administration Act1990 (WA) (the Act). The Public Advocate seeks to have her appointment revoked and a community guardian appointed in her place.
The Community Guardian Program
The Community Guardian Program was established recently by the Public Advocate. It aims to establish lasting, personal relationships between volunteer guardians and persons with disabilities who have no one else in their lives, who are in need of a guardian, and for whom, in the absence of anyone else suitable and willing, the Public Advocate would be appointed guardian.
Prospective community guardians are selected and trained by the Public Advocate. The process involves a written application, attendance at an initial information and selection session followed by a two day training session, criminal record and referee checks, and signing a confidentiality agreement. Proposed community guardians are then "matched" to an individual for whom the Public Advocate is currently appointed guardian, and they spend time developing a relationship with that person before being proposed for formal appointment as guardian. The Public Advocate provides continuing training and support to a community guardian once appointed.
Does PN need anyone to act on his behalf
PN is a 31 year‑old man with an intellectual disability who lives in supported accommodation. His family has had no contact with him for many years. He was brought up by foster parents who no longer have contact with him.
PN still works at the supported employment workplace where he worked in 1997 when the Public Advocate was first appointed his guardian to enter into a workplace agreement on his behalf. However, changes have occurred which mean it is no longer necessary to renew that agreement each year, and PN is no longer in need of a guardian for that purpose.
PN continues to receive various forms of medical treatment and health care for which consent must be given. Reports before the Tribunal from his general practitioner, as well as from a consulting psychiatrist who sees him from time to time, confirm that PN is not able himself to make decisions concerning his treatment.
The Tribunal is satisfied that PN is not able, because of his intellectual disability, to look after his own health and safety or to make reasonable judgments about matters relating to his person, and that he is in need of oversight and care in the interests of his own health and safety. In particular, he needs a person with lawful authority to consent on his behalf to any medical or related treatment or health care.
The proposed community guardian
The Public Advocate proposes that ST, a volunteer from the Community Guardian Program, who has formed a close, personal relationship with PN over the past year, be appointed his limited guardian for the purpose of consenting to his treatment and health care.
ST has worked in the education system for almost 40 years and has worked with children with intellectual disabilities and their families. He supported his elderly mother when she was no longer able to care for herself.
The Public Advocate says that ST has made a significant commitment to the Community Guardian Program through his involvement in the training program and with other volunteers; he understands the obligations on a guardian to act in the best interests of the person for whom she or he is appointed, and he takes the role of community guardian, and his relationship with PN, seriously.
ST has been in regular contact with PN since early 2007. He lives relatively close to PN and visits him fortnightly. He has taken an active interest in PN's welfare, and has made a point of meeting with his carers and his treating doctors, as well as visiting him at his place of work.
The Public Advocate has sought the views of staff of the Disability Services Commission, which manages the group home in which PN lives, about ST's relationship with him. According to the Public Advocate, Commission staff have consistently provided positive feedback about their relationship and report that PN seems very happy to see ST when he visits. Commission staff report that ST now knows PN as well as any of his paid carers, and is accepted by house staff as part of PN's life.
ST attended the Tribunal hearing of the review, accompanied by PN and officers from the Office of the Public Advocate and the Disability Services Commission. ST outlined for the Tribunal how his relationship with PN has developed and how he regards it as a continuing responsibility. He recognises that, if appointed, he may be called on to make decisions of consequence on PN's behalf. He was able to clearly outline how he would approach any decisions to be made about PN's treatment and health care, and how he would seek guidance from the Public Advocate if necessary, but would be responsible for all decisions made on PN's behalf.
The Tribunal is satisfied that ST has demonstrated his capacity to act in PN's best interests, both through his past experience and his commitment to developing a close relationship with PN and understanding his needs. As far as the Tribunal is able to determine, ST and PN are compatible. There is nothing before the Tribunal to suggest that ST's interests conflict, or may conflict, with PN's interests.
What are P's views and wishes
The Tribunal must seek to ascertain, as far as possible, PN's views and wishes as expressed in whatever manner, at the time or as gathered from his previous experiences: s 4(2)(f).
PN is not able to communicate orally. He has some ability to communicate by signing but ST has learned from PN's carers that he is not always consistent in how he signs; ST appreciates that he will have to continue to work with PN's carers in order to help him improve their communication.
PN's difficulties in communicating make it difficult to ascertain his views and wishes about the application. The Tribunal accepts the report from PN's carers that he appears very happy to see ST when he visits.
In the circumstances, it is not possible to make a positive finding that PN would wish for ST to act on his behalf. However, nothing in the evidence before the Tribunal suggests it would be contrary to his wishes.
Is there a less restrictive means of meeting PN's needs than the formal appointment of a guardian
A guardianship order shall not be made if the needs of the person concerned could, in the opinion of the Tribunal, be met by other means less restrictive of his or her freedom of decision and action: s 4(2)(c).
Section 119(3) of the Act provides a means by which consent to medical and dental treatment may be given by certain persons without the need for a formal appointment. Consent may be given by the first in order of priority of the following persons:
(a)a guardian of the person needing treatment;
(b)the spouse or de facto partner of the person needing treatment;
(c)a person who, on a regular basis, provides or arranges for domestic services and support to the person needing treatment but does not receive remuneration for doing so;
(d)a person who is the nearest relative (other than the spouse or de facto) of the person needing treatment and who maintains a close personal relationship with the person needing treatment; or
(e)any other person who maintains a close personal relationship with the person needing treatment.
A person is regarded as having a close personal relationship if the relationship is maintained through frequent personal contact and a personal interest in the welfare of the person needing treatment: s 119(3)(e).
In PN's case, there is no one who meets (a) to (d) of the hierarchy in s 119(3).
The question arises whether ST meets the criterion in s 119(3)(e), being a person who maintains a close, personal relationship with PN. If so, there may be no need for a formal appointment as guardian.
This question has arisen in previous matters concerning the appointment of a community guardian (see: The Public Advocate and F [2007] WASAT 183; The Public Advocate and DMS [2008] WASAT 140 (DMS)). It arises firstly because it is in the nature of the Community Guardian Program that close, personal relationships develop between the proposed community guardian and the person whom the application concerns. It arises secondly because the Public Advocate envisages that community guardians are likely to be proposed where the person concerned needs someone to consent on their behalf to treatment and health care.
Why a formal appointment is in PN's best interests
The Public Advocate submits that a "close and personal relationship" has developed, and is being maintained, between ST and PN on the basis of which ST is a suitable person to act as P's guardian.
The Tribunal accepts that a relationship is developing between ST and PN that could be regarded as coming within the meaning of s 119(3)(e) of the Act in that the relationship is maintained through frequent personal contact and ST's personal interest in PN's welfare.
However, the Tribunal considers it in PN's best interests that ST be formally appointed his guardian for the following reasons.
Nothing in s 119 requires a relationship to be of any particular duration. However, in this case, the relationship is still less than 12 months old. Although the Tribunal has no reason to doubt ST's suitability to act on PN's behalf, the relationship is still relatively untested.
A formal appointment provides safeguards which the Tribunal considers will better meet PN's best interests than the less formal means provided by s 119(3).
Section 51 of the Act obliges a guardian to act according to his or her opinion of the best interests of the person concerned. The same section specifies what it means for a guardian to act in that person's best interests. It imposes statutory obligations on a guardian to act in particular ways in relation to the person he or she represents.
The Act also provides that every order appointing a guardian must be reviewed by the Tribunal when it expires: s 84. This provides a means by which an order can be monitored and adjusted, if necessary, to meet the changing needs of the person concerned. It also provides a measure of accountability on the part of the guardian that s 119(3), which operates simply to authorise doctors to administer treatment with the consent of specified persons, does not.
As the Tribunal put it in DMS (above, at [63]), the combination of these requirements offers "a robust protection not inherently present in decisions made under s 119". The added protection is appropriate where the relationship is still developing, including with carers and treating doctors.
The question of chemical restraint
The Public Advocate has provided the Tribunal with four reports from PN's consultant psychiatrist dated between October 2001 and October 2004. They refer to various medications given to PN to manage his occasionally aggressive behaviour and his "schizo‑affective disorder which probably underpinned his outbursts of aggression". A report in October 2004 states that the medications "were not for chemical 'restraint'".
The Public Advocate's representative has told the Tribunal that this last comment was in response to an inquiry from the Public Advocate as to whether any of PN's medications could be considered chemical restraint. However, she was not able to provide further information about when the diagnosis of schizo‑affective disorder was made or who made it, and the consulting psychiatrist's report offers nothing further about this.
If any of PN's medications could be considered as purely chemical restraint to manage his behaviour, a question arises as to whether or not they amount to treatment within the meaning of the Act. If they do not, then the guardian may need additional authority to consent (or not) to their administration.
In the absence of sufficient information about this, the Tribunal considers that an investigation and report by the Public Advocate is needed.
The Tribunal will therefore appoint ST as PN's limited guardian with authority to consent to his treatment and health care for an initial period of three months at the end of which it will review the order and determine whether or not ST requires additional authority in relation to any medications of restraint.
If it were not for this last matter, the Tribunal would have appointed ST limited guardian for PN for a period of 12 months so that it could review at that time whether there was still a need for a formal appointment or whether s 119(3)(e) would provide a less restrictive means of meeting PN's needs.
Does PN need someone to manage his financial affairs
There is no application before the Tribunal for the appointment of an administrator to manage PN's financial affairs. However, it is not clear how his finances are being managed or under what authority anyone is acting on his behalf, and it may be that he is in need of an administrator.
The Tribunal therefore refers this matter to the Public Advocate for investigation and report to the next hearing pursuant to s 97(1)(c) of the Act.
Orders
The order dated 13 February 2003 is revoked and the following order substituted for it:
1.ST is appointed limited guardian of PN, subject to Division 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA), to consent to any treatment or health care of PN.
2.This order is to be reviewed by 21 April 2008.
The orders as they appear in this decision have been amended from the original orders so as to remove information that may identify the persons whom they concern.
I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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