PUBLIC ADVOCATE and CEF
[2010] WASAT 54
•19 APRIL 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: PUBLIC ADVOCATE and CEF [2010] WASAT 54
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
MR J MANSVELD (MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)
HEARD: 3 DECEMBER 2009
DELIVERED : 19 APRIL 2010
FILE NO/S: GAA 2210 of 2009
BETWEEN: PUBLIC ADVOCATE
Applicant
AND
CEF
Represented Person
Catchwords:
Guardianship - Review of need for continuation of limited guardianship order - Guardian seeking to liaise with persons involved in litigation in which represented person a party - Represented person capable of making reasonable judgments concerning her person - Represented person liable to suffer detrimental health effects in certain situations - Whether open to appoint guardian - Need for guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 3
Result:
Limited guardianship order made
Category: A
Representation:
Counsel:
Applicant: Ms B Turner and Ms D Fallon (Agents)
Represented Person : RCW (Limited Guardian)
Solicitors:
Applicant: Self-represented
Represented Person : Self-represented
Case(s) referred to in decision(s):
LGW [2004] WAGAB 4
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Public Advocate sought a review of an existing guardianship order which was not otherwise due for review until June 2011. The Public Advocate questioned the ongoing need for a limited guardianship order. The order was limited to acting as next friend or guardian ad litem in relation to legal proceedings except proceedings relating to the estate of the represented person.
The Tribunal reviewed the background to the order, and the available medical evidence as to the represented person's capacity and mental health. It reached the conclusion that the represented person was liable to suffer adverse effects on her health if required to deal personally with others in connection with the multiplicity of the Court actions in which she was involved. It determined that, in the interests of her health, she was in need of oversight, care and control in relation to liaising with others concerning the litigation and that there was a need for a guardian to be appointed for that purpose. The Tribunal considered that the present guardian was an appropriate person to act as limited guardian, and varied the terms of the existing order to enable the guardian to liaise with others on behalf of the represented person in relation to the litigation in which the represented person was involved.
The application
The Public Advocate brings this application under s 86(1) of the Guardianship and Administration Act 1990 (WA) (GA Act) for a review of an order for limited guardianship made by the Tribunal on 3 October 2007 in respect of CEF. The order appointed RCW as limited guardian in respect of CEF with the following functions:
(a)as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person;
(b)as the guardian ad litem of the represented person, defend or settle any legal proceedings taken against the represented person except proceedings relating to the estate of the represented person.
The order was to be reviewed by 14 June 2011, but the Public Advocate sought an earlier review following an investigation as to whether or not the continuation of the guardianship order was appropriate.
The issues which arise for determination are whether the represented person is able to make reasonable judgments in respect to matters related to her person or is in need of oversight, care or control in the interests of her own health and safety and whether there exists a need for the appointment of a guardian.
In addition, an issue arises as to whether, if there is a need for a guardian, the need can be met by other means less restrictive of her freedom of decision and action.
Background to the application
RCW was first appointed limited guardian of CEF on 12 August 2002. At that time, proceedings had been commenced by CEF in the Supreme Court of Victoria (Victorian Supreme Court proceedings), and the appointment was limited to acting as next friend of CEF to conduct and settle legal proceedings relating to that action. The order recites that the Guardianship and Administration Board was satisfied as to all of the requirements of s 43 of the GA Act.
An application by RCW for appointment as administrator was dismissed at the same time.
On 26 August 2004, CEF's claim in the Supreme Court of Victoria was dismissed. The claim was for damages from the defendants for psychiatric injury claimed to have been suffered by CEF as a result of exposing her to a risk of contracting CreutzfeldtJakob disease. The trial judge was scathing about CEF's credibility. He concluded that no credence whatsoever could be placed upon her evidence. He made a similar finding against RCW, who had given evidence at the trial.
For some time, CEF has been engaged in an extraordinary amount of litigation. At the hearing of this application, the Tribunal was provided with a list of outstanding legal matters. That list comprised eight 'pending matters', five appeals and one outstanding enforcement issue in relation to an apparently successful claim against a Victorian legal practitioner. CEF is subject to a very substantial costs order in the Victorian Supreme Court proceedings, and an adverse costs order in a Western Australian Supreme Court action and in the appeal from the judgment in that action.
The brief description of the subject matter of the pending matters suggests that, for the most part, the actions appear to relate to matters concerning CEF's estate, rather than matters relating to her person.
In May 2006, it came to the notice of the Tribunal that RCW had been declared bankrupt. A review of the guardianship order was thus initiated pursuant to s 85 of the GA Act by the Executive Officer of the Tribunal.
That application was heard in June 2006, and the existing guardianship order was revoked and a new order made in its place. It is the order made following that hearing that is the subject of review in these proceedings.
In September 2007, RCW made an application to the Tribunal endeavouring to extend the guardianship order to include a capacity to represent CEF in proceedings involving her estate. In November 2007, RCW wrote to the Tribunal withdrawing that application, and an order granting leave to withdraw the application was made on 6 November 2007.
In the course of proceedings in relation to a number of actions in the WA Supreme Court during 2007 and 2008, the question of CEF's capacity and RCW's authority to represent CEF arose. In March 2008, CEF herself commenced an application in the Tribunal. The application was for the appointment of a limited administrator to represent CEF in court matters, including representation in relation to a company of which CEF was apparently a director.
That matter was heard on 17 June 2008, and dismissed on that day.
As already mentioned, the question of CEF's capacity to conduct proceedings in the WA Supreme Court became an issue in the context of proceedings in that Court. In December 2008, Justice Pullin referred to the Office of the Public Advocate an investigation as to whether CEF was in need of an appointed administrator to act as next friend in matters before the Court regarding her estate. The Public Advocate wrote to CEF's general practitioner, Dr P, in an attempt to gain information regarding CEF's capacity. At that time, CEF had begun to attend a psychiatric clinic for treatment. We will return to the medical evidence in relation to CEF's capacity below.
In March 2009, Pullin J, having heard submissions on behalf of the Public Advocate and counsel for the Public Trustee, appointed the Public Trustee as next friend for the purposes of the litigation before him. He did so on the basis that by reason of the order of 3 October 2007, CEF is a 'represented person' as defined in s 3 of the GA Act, and is therefore by reason of that fact, a 'person under disability' within the meaning of O 70 of the Rules of the Supreme Court 1971 (WA).
It was the inquiry undertaken by the Office of the Public Advocate following the referral by the Court which gave rise to this application.
Medical evidence
In a Doctors Guide provided to the Tribunal prior to the hearing, Dr NS, a psychiatrist, identified CEF as suffering from 'anxiety disorder, personality disorder, somatisation disorder'. Dr NS had first recognised that impairment when CEF sought treatment at the psychiatric clinic in February 2009. In relation to prognosis, Dr NS said that CEF was likely to have chronic longterm difficulties with functioning due to severity of her personality disorder and her anxiety disorder. Dr NS considered that CEF was capable of making reasonable decisions in relation to her personal health care, and her living situation, but was unsure about her capacity to make reasonable decisions in relation to financial affairs. He noted that the 'patient believes her capacity is very limited due to perceived effects of psychiatric trauma and a sense of learned helplessness'.
CEF's longterm general practitioner Dr P gave evidence at the hearing. In his report prior to the hearing, Dr P identified a diagnosis of 'impaired concentration and attention span' which he said he had recognised for some 10 years. He considered her capable of making decisions in relation to personal health care, was unsure as to her capacity to make reasonable decisions in relation to living situation, and considered her incapable of making reasonable decisions in relation to financial affairs. He noted that 'she has testamentary capacity but is unable to make financial decisions. Very vague with commitments'. He considered her capable of making a valid enduring power of attorney.
In his oral evidence, Dr P said that CEF finds it very difficult to make consistently meaningful decisions about her own health and safety. He suggested that her indecisiveness was largely borne of an inability to follow up matters as a result of major depression. He considered, however, that there was an element of inability to understand the consequence of decisions fully. He agreed with the view of Dr NS that anxiety and personality disorders were features of CEF's presentation.
Dr P confirmed that, in relation to medical treatment decisions, he accepted and relied upon CEF's personal consent. It was noted that, in May 2006, Dr P provided a Doctors Guide to the Tribunal for proceedings then on foot. In that guide, he considered CEF capable of making reasonable decisions in relation to personal health care, living situation and financial affairs.
In 1996, CEF was diagnosed with major depression by her treating psychiatrist. For the purposes of proceedings before the Guardianship and Administration Board in 2002, she was described by a neurologist as being 'depressed, apathetic, loss of energy' and that 'she finds it hard to do things'. The neurologist otherwise considered that she was capable of making reasonable decisions in relation to personal health care, living situation and financial affairs. He considered that any incapability was emotional rather than cognitive. Her treating psychiatrist at the time diagnosed CEF as suffering from generalised anxiety disorder and intermittent mild to moderate depression. The psychiatrist observed that CEF 'has mild impairment of concentration, memory and wordfinding, due to anxiety, but her comprehension and judgment are unimpaired. Is fearful.'
She added that CEF's state of anxiety prevented her from thinking clearly under pressure and impairing her motivation, planning and decisionmaking for all except the most basic day to day activities. She observed that CEF's most recent appearance in the Victorian Supreme Court 'caused her to have a panic attack akin to a catastrophic reaction.'
CEF and RCW's submissions
CEF attended the hearing accompanied by RCW. Other than by making occasional brief comments to RCW as he addressed the Tribunal, CEF did not contribute to the proceedings, and declined the Tribunal's invitation to address any of the issues which had been discussed. Prior to the hearing, however, she did write to the Tribunal expressing her distress at being served with notice of the hearing. The threepage letter was cogent. CEF indicated that she would only attend the hearing if certain people, in particular representatives of the Public Trustee, were not present in the room. She explained how, at a meeting with representatives of the Public Trustee a few months before, she had collapsed through stress resulting in her being conveyed to hospital by ambulance. CEF wrote that she did not want the guardian removed. She said that if that occurred, she 'would again have to attend Court or meetings by myself and be bullied, shouted at into submission until tricked to signing things, rather than suffer the consequences that I am always told, you must do as you are told, if you don't do it then we will do this or that to you.' She also expressed the desire that she wanted RCW to 'be appointed as a power of attorney or whatever necessary order to take care of my financial affairs also'.
In written submissions prepared by RCW on CEF's behalf, additional medical reports were provided to the Tribunal. Most recent of those was a report from a consultant neurologist who had treated CEF at hospital following her collapse after the meeting at the Public Trustee's office in March. The neurologist expressed the view that CEF's collapse could be entirely explained as a result of hyperventilation syndrome, associated with an acute stress reaction, leading to collapse and other functional neurological symptoms. He described the presentation as a psychological reaction to an extreme situation. He considered the presentation to be consistent with a diagnosis of panic attack in respect of which she had been treated in the past. Amongst other older medical reports were diagnoses of depression and anxiety at various times between 1996 and 2003.
Her submissions also appended a series of correspondence between officers of the Public Trustee on the one hand, and RCW on behalf of CEF on the other. The correspondence demonstrates the difficulty which attended communications between the Public Trustee, which was then acting as guardian ad litem for CEF pursuant to the Supreme Court's orders and CEF and RCW. For example, in June 2009, the Public Trustee's representative wrote that she would only meet with CEF on the basis that a letter from CEF's current medical practitioner was obtained stating that CEF was physically and mentally competent to meet with the Public Trustee, and that a meeting would not cause any adverse medical condition. CEF responded that she was not able to give that assurance.
CEF contends that RCW's ongoing involvement in relation to her litigation is essential for her health and wellbeing. She relies on arguments put to the Public Advocate by RCW in an email dated 15 October 2009 in which it is observed that each of CEF's estate cases involves her lifestyle 'given that they have left her homeless'. The email cites the report by the psychiatrist following CEF's admission to hospital in March 2009 as indicating the likely physical effect of requiring CEF to deal with the legal proceedings in which she is involved. The email continues:
Given [CEF's] current adverse financial position I can foresee myself being required to settle future disputes involving outstanding rates, utilities, medical bills etc. I also expect involvement with social welfare agencies arranging accommodation or rental leases. There also remains an outstanding costs order against [CEF] in the Victorian matter of approximately 1.7 million dollars. If this claim is pursued albeit pointlessly given [CEF's] impecuniosity then I shall need to be allowed to act as [CEF's] guardian in any sequestration proceedings.
CEF through RCW, seeks an extension of the powers of RCW as limited guardian to include the function of liaising on her behalf with any court-appointed next friend or guardian ad litem in all matters that may otherwise adversely affect her health and wellbeing.
Section 43(1)(b)
The foundation upon which the Tribunal's jurisdiction to appoint a guardian is found in s 43(1) of the GA Act. The Tribunal must be satisfied that the proposed represented person is incapable of looking after her own health and safety, is unable to make reasonable judgments in respect of matters relating to her person, or is in need of oversight, care or control in the interests of her own health and safety or for the protection of others s 43(1)(b).
It is not suggested that CEF is generally incapable of looking after her own health and safety.
We do not consider that the evidence supports a conclusion that CEF is unable to make reasonable judgments in respect of matters relating to her person. The Doctors Guide provided by Dr NS, her treating psychiatrist, suggested that CEF was capable of making reasonable decisions about her personal healthcare and living situation. While Dr P said that CEF finds it difficult to make consistently meaningful decisions about her own health and safety, it is apparent that he has continued to treat her over a long period on the basis that he accepted and relied upon her personal consent. Whilst we accept that it is likely that some decisionmaking in relation to her person is at times difficult, depending on the state of her anxiety and depression, we are not satisfied that, as a general proposition, any inability to make reasonable judgments in respect of matters relating to her person is supported by the evidence.
The third possible finding upon which the appointment of a guardian may proceed is a finding that CEF is in need of oversight, care or control in the interests of her own health and safety s 43(1)(b)(iii). The unusual circumstances of this application require a close consideration of this potential basis for a guardianship order.
CEF is engaged in an extraordinary morass of litigation, both as a plaintiff or appellant or as a defendant. We are satisfied that the requirement to deal with that litigation has the potential to detrimentally affect CEF's health and wellbeing. It is clear enough that CEF is susceptible to suffering severe anxiety and panic attack when required to deal with that litigation, either by way of representing herself at hearings, or even dealing with others in relation to those proceedings. The example of her collapse following a meeting with the Public Trustee illustrates the point. That collapse, and the subsequent hospitalisation for the strokelike symptoms suffered, occurred in a context of her attempts to deal with the Public Trustee. The Public Trustee was, by the intervention of the Court, appointed to conduct the proceedings as next friend in relation to several appeals. The neurologist's report in 2002 which described 'a panic attack akin to a catastrophic reaction' in relation to an appearance in the Victorian Supreme Court suggests a similar incident. CEF's letter to the Tribunal concerning her attendance at the hearing expressed a fear of similar anxiety if representatives of the Public Trustee were to attend. The Public Trustee's correspondence with CEF in which a medical assurance was sought before the Public Trustee's officers would meet with CEF suggests that the Public Trustee (quite appropriately) holds concerns about CEF's health and wellbeing when matters concerning the legal proceedings need to be dealt with.
RCW has performed the role of agent for CEF in relation to her dealings with various parties concerning the litigation. The extent to which he has done so in the exercise of his role as limited guardian, as distinct from somebody simply authorised by CEF to deal with others on the matters or provide assistance and help to her, is not clear. There is no doubt, however, that the existence of a limited guardianship order has been of some assistance to RCW in being able to represent CEF for certain purposes in relation to her litigation.
We are satisfied that, left entirely to herself to deal with her litigation, CEF would be unable to cope, and it is likely that her health would be adversely affected. Accordingly, she has, in our view, demonstrated a need for oversight, care and control in relation to the litigation in which she is involved. That need arises in the interests of her health.
Section 43(1)(c) of the GA Act requires that, in order to appoint a guardian, the Tribunal must be satisfied that the proposed represented person 'is in need of a guardian'. Section 4 of the GA Act sets out the principles to be observed by the Tribunal in dealing with the proceedings under the GA Act. Section 4(2)(c) prevents a guardianship order being made if the needs of the person concerned could, in the Tribunal's opinion, be met by other means less restrictive of the person's freedom of decision and action. As we have already concluded, in the interests of CEF's health, she is in need of oversight, care and control in relation to the litigation in which she is involved. That is not to say that CEF is incapable of understanding and making decisions in relation to that litigation. Rather, it is the requirement to deal with others in relation to the subject matter of the litigation which poses the risk to her health. The role played thus far by RCW appears to be one of assisting and representing CEF in accordance with her wishes, rather than as an independent decisionmaker. There is, however, necessarily an element of decisionmaking which RCW undertakes on CEF's behalf in any situation where it is necessary to advocate her interests, or communicate with others concerning her litigation.
The question of whether a guardian be appointed simply to fulfil a need for an advocacy role was considered by the Guardianship and Administration Board in LGW [2004] WAGAB 4. That case concerned a person who was under the custody of the Mentally Impaired Defendants Board (MID Board), and accordingly, the MID Board had power to make decisions in relation to the personal affairs of the proposed represented person. It was argued, however, that a guardian should be appointed to advocate on LGW's behalf in relation to decisions concerning her personal affairs. In opposition to the application, it was argued that the purpose of the GA Act is to give an authoritative decisionmaking role to a substitute decisionmaker, and removing the right to make decisions from a person and giving that right to another person. It was argued that there was no intent in the Act to give a guardian an advocacy role which has no authority to make decisions attached to it.
After considering the competing arguments put to it, the Board said:
The Board has considered these opposing positions. In the end, we are driven back to the text of the legislation. It appears to us that the description of the functions in s 45(1) is clear in its terms. The references to the provisions of the Family Court Act in our view describe a bundle of responsibilities that often include decision-making but may also cover a range of other functions, duties and powers that attach whenever one has the equivalent of parental responsibility for the long-term and day-to-day care, welfare and development of a represented person. This includes acting to assert and protect the rights and interests of the child against third parties and making representations on behalf of a person.
We also consider that the steps which must be taken to make representations on behalf of a person can in themselves be seen as a type of decision-making. This was in effect the nature of the initial views put to the Board by the guardian in this case. Indeed, in our view the concept of "authoritative" decision-making may be an artificial distinction, or at least an elusive test. A parent for example may be able to make “decisions” on behalf of a child in respect of certain matters, but in many cases the outcome will be in the hands of others. In the same vein, "advocacy" in respect of a particular matter involves making choices as to what avenues are to be pursued and what submissions are to be put forward on behalf of the represented person. In our view, such actions are also akin to the functions set out in s 45(2) in relation to the role of next friend or guardian ad litem in litigation.
With respect, we agree with the observations of the Board.
It follows that, in our view, it is open to us to appoint a guardian for the limited purpose of representing CEF in relation to the litigation in which she is involved.
The question arises as to whether the need for oversight, care or control in relation to the litigation gives rise to a need for the appointment of a guardian. That question involves consideration of whether the need for oversight, care and control might be met by other means less restrictive to CEF's freedom of decisionmaking and action.
The type of order contemplated would, in fact, impose minimal restriction on CEF's freedom of decisionmaking and action. Its restrictions would only occur in a context of those situations where CEF's ability to make decisions or conduct dealings with others might be paralysed by her anxiety. It is otherwise recognised that the guardian would work in conjunction with CEF, and essentially carry out her wishes in relation to the conduct of proceedings generally.
Whilst not determinative of the issue, we are conscious that CEF strongly supports the continued appointment of a guardian for the purposes described.
Could the needs be met by less restrictive means?
We have considered whether the execution of a power of attorney, or some other form of written authority, might put RCW effectively into the position which both CEF and he wish to achieve. There does not seem to be any suggestion that CEF is incapable of executing a valid power of attorney. As we understand CEF and RCW's submissions, the problem with that course is that persons with whom CEF may be required to deal in the context of proceedings are less likely to be prepared to deal with RCW on the strength of a power of attorney. They suggest that experience shows that the existence of the guardianship order has been of significant assistance in having other parties accept RCW's standing to speak on CEF's behalf. We note that it was the existence of the guardianship order which provided the foundation for the requirement for her to be represented by a guardian ad litem, pursuant to O 70 of the Rules of the Supreme Court 1971 (WA). The existence of a power of attorney would not have enabled the Court to appoint a guardian ad litem or next friend, but the Court would have been required to itself declare CEF to be incapable of managing her affairs in respect of the proceedings.
In our view, the need for oversight, care and control in relation to litigation gives rise to the need for the appointment of a limited guardian.
Is appointment of RCW appropriate?
A guardian is required to act according to his opinion of the best interests of the represented person s 51(1) GA Act.
It seems clear that RCW's motivation is to assist CEF as much as possible. He seeks to, and has, acted as an advocate for her, has provided a very supportive relationship and has sought to protect her from situations which imperil her wellbeing.
A question was raised at hearing as to whether RCW's assistance to CEF in undertaking or prolonging various legal proceedings was acting in her best interests. RCW was involved with the conduct of the Victorian Supreme Court proceedings which resulted in strong adverse findings against both himself and CEF. That action has resulted in both of them being liable for enormous costs orders, and both being declared bankrupt. Although it is concerning that much of the litigation which CEF has been involved appears to have been unsuccessful, the Tribunal is not in a position to make any assessment as to the merits of the continuation of existing proceedings. The Tribunal has no adequate basis for any finding that RCW has not acted in the interests of CEF. What can be said is that, in the absence of his assistance, there is a real prospect that CEF's health may have been severely adversely affected.
RCW's close involvement with CEF over many years, and through much litigation, raises questions as to whether some independent person, such as the Public Advocate, ought to be appointed to fulfil the role of limited guardian in place of RCW. The problem with that course is that it is likely to give rise to precisely the same sort of difficulties as CEF encountered in her attempts to deal with the Public Trustee in its capacity as her next friend in the Supreme Court litigation. CEF obviously holds a high degree of trust and confidence in RCW's representation of her interests. It is her firm desire that he act as her guardian for the limited purpose of assisting with her litigation. It is in her interests that the litigation be dealt with and resolved as soon as possible.
CEF suggests that the existing guardianship order be extended to include an appointment for the purpose of liaising on her behalf with any courtappointed next friend or guardian ad litem in all matters that may otherwise adversely affect CEF's health and wellbeing. Most, if not all, of the litigation in which CEF is now engaged involves proceedings relating to her estate. In our view, the appointment of RCW to liaise with any courtappointed next friend or guardian ad litem in relation to that litigation would serve the interests of CEF's health by avoiding the likely prospect of severe anxiety or panic attacks. We think it unlikely that the appointment of any third party who did not enjoy the trust and confidence which CEF places in RCW would achieve the same end, and would not serve the interests of CEF.
Conclusion
For the foregoing reasons, we consider that it is in the best interests of CEF that orders should be made varying the appointment of RCW as limited guardian of CEF by adding the function of liaising on CEF's behalf with any courtappointed next friend or guardian ad litem to the extent necessary in relation to any matter which, if undertaken personally by CEF, may affect her health and wellbeing.
It is not open to the Tribunal to appoint a limited guardian to act as next friend or guardian ad litem in relation to litigation involving CEF's estate, and the orders we propose to make do not have that effect. The orders will however, permit RCW to deal with any court-appointed representations of CEF where it would threaten CEF's health and wellbeing if she were required to undertake those dealings herself.
Orders
1.The order made on 3 October 2007 is varied by adding a paragraph (c) so that the order reads:
RCW be appointed limited guardian of the represented person with the following functions:
(a)As the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person; and
(b)As the guardian ad litem of the represented person, defend or settle any legal proceedings taken against the represented person except proceedings relating to the estate of the represented person; and
(c)To liaise on behalf of the represented person with any court-appointed next friend or guardian ad litem of the represented person to the extent necessary in relation to any matter which, if undertaken personally by the represented person may affect her health and wellbeing.
2. This order is to be reviewed by 14 June 2011.
I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT