Public Advocate and F
[2007] WASAT 183
•10 JULY 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: PUBLIC ADVOCATE and F [2007] WASAT 183
MEMBER: MS J TOOHEY (SENIOR MEMBER)
MR J MANSVELD (MEMBER)
MS F CHILD (MEMBER)
HEARD: 2 MAY 2007
16 MAY 2007
DELIVERED : 10 JULY 2007
FILE NO/S: GAA 459 of 2007
BETWEEN: PUBLIC ADVOCATE
Applicant
AND
F
Represented Person
Catchwords:
Guardianship - Public Advocate limited guardian with authority to consent to treatment and health care - Community Guardian Program - Proposed appointment of community guardian - Close personal relationship - s 119(3)(e) - Effect of Memorandum of Understanding would be that community guardian and Public Advocate would act jointly - Delegation - Public Advocate appointment as limited guardian confirmed - Public Advocate authorised to delegate her function to community guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2)(c), s 94(1), s 94(2), s 94(3), s 95, s 97(1)(g), s 119(3), s 119(3)(a), s 119(3)(e)
Public Sector Management Act 1994 (WA), s 33
Result:
Appointment of the Public Advocate as limited guardian confirmed
The Public Advocate authorised to delegate her function to the community guardian
Category: B
Representation:
Counsel:
Applicant: Self-represented
Represented Person : N/A
Solicitors:
Applicant: Self-represented
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
F was a 53 year old man with an intellectual disability who had lived for many years in supported accommodation. He had no family and, apart from workers at his residence, only a former carer had occasional contact with him.
For some years the Public Advocate had been F's limited guardian with authority to consent on his behalf to what was fairly routine treatment and health care.
The Public Advocate asked the Tribunal to revoke her appointment and appoint instead a community guardian to consent to F's medical treatment.
The Community Guardian Program is an initiative of the Office of the Public Advocate. It aims to develop relationships between persons with a disability in need of a guardian and volunteers from within their local community, with a view to the volunteer being appointed guardian.
This application was the first for the appointment of a community guardian.
G, the proposed community guardian, had met F some months previously and was developing a supportive relationship with him. The Tribunal considered whether the relationship was such that G would have authority under s 119(3)(e) of the Guardianship and Administration Act 1990 (WA) to consent to F's medical treatment, making a formal appointment unnecessary. It decided that the relationship would need more time before it could be considered a close personal one within the meaning of s 119(3)(e).
The Public Advocate proposed that, if appointed, G would sign a Memorandum of Understanding undertaking to consult with the Public Advocate about any complex or contentious medical decisions to be made for F. In the Tribunal's view, the effect of the Memorandum of Understanding was that, rather than G, as sole guardian, making decisions on F's behalf, she and the Public Advocate would act as joint guardians, at least in relation to any complex or contentious treatment decisions. The Tribunal considered that, insofar as she would not fully perform the functions vested in her, G could not be considered suitable to act as guardian under the proposed arrangement.
The Public Advocate suggested that she would not require G to enter into the Memorandum of Understanding if doing so would, in effect, fetter G's authority as guardian. However, after hearing from G and representatives of the Public Advocate, the Tribunal decided it was in F's best interests for G to have the opportunity to consult with the Public Advocate and, in effect, make decisions jointly for an initial period, as had been contemplated by the Memorandum of Understanding.
The Tribunal confirmed the Public Advocate's appointment as F's limited guardian for 12 months and authorised her to delegate her authority to G for that period. At the end of that time G's relationship with F could be a close personal one within the meaning of s 119(3)(e) and she would have authority to consent to medical treatment by virtue of that provision; alternatively, she could be suitable to be appointed sole guardian.
Background
On 16 December 1999, the Guardianship and Administration Board appointed the Public Advocate plenary guardian for F. The order has been reviewed several times since, first by the Board and, since January 2005, by this Tribunal. According to F's needs at the time, the authority vested in the Public Advocate has varied. Most recently, on 27 September 2006, the Tribunal confirmed the appointment of the Public Advocate as limited guardian for F, with the sole function of consenting to his treatment and health care, for a period of five years.
The Public Advocate now seeks to have her appointment revoked and a community guardian appointed for F.
The Community Guardianship Program
This is the first application for the appointment of a guardian under the Community Guardian Program (CGP) which was established by the Public Advocate with the aim of having volunteer guardians appointed for persons in need of a guardian from within their local community. The CGP is seen as one means by which the Public Advocate carries out her function under s 97(1)(g) of the Guardianship and Administration Act 1990 (WA) (the GA Act) to promote family and community responsibility for guardianship and, for that purpose, to undertake, coordinate and support community education projects.
The CGP aims to establish lasting, personal relationships and reduce isolation for persons with disabilities who have no one else in their lives, 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.
The Public Advocate's recruitment and training program for prospective community guardians 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 "matched" to an individual and spend time developing a relationship with them before being proposed for formal appointment as guardian. The Public Advocate will provide ongoing training and support to community guardians once appointed.
Does F need a guardian
F is a 53 years old man who has an intellectual disability and lives in stable, supported accommodation. No family members are involved in his life and, other than those involved in his daily care, the only person with occasional contact is a former carer.
It is not in dispute that F is not able, by reason of his disability, to look after his own health and safety or make reasonable judgments about matters relating to his person, or that he is in need of oversight and care in the interests of his own health and safety.
F's only present need is for someone to consent on his behalf to treatment and health care. The Public Advocate has performed this function since she was first appointed in 1999. In that time, F's treatment needs have been relatively simple and stable, consisting of the removal of a number of precancerous skin lesions and the prescription of a small number of common medications.
It is not in dispute that consent needs to be given on F's behalf to treatment. The question for the Tribunal is whether a formal appointment is necessary and, if so, who should be appointed.
The proposed community guardian
In written submissions to the Tribunal, the Public Advocate has set out details of the CGP generally, and detailed information about G, whom the Public Advocate proposes be the appointed community guardian for F.
G has been selected for her personal and professional experience in working with people with disabilities, her demonstrated commitment to the CGP generally, and the relationship she has developed with F. She has visited F regularly since meeting him approximately eight months ago and has developed a good understanding of his needs. Staff at the hostel where F lives report to the Public Advocate that G interacts well with them as well as with F; she advocates for him, supports his regular attendance at church and encourages him to participate in the community; her commitment to F is evident.
F and G attended an oral hearing on 2 May 2007 together with representatives of the Public Advocate. G described for the Tribunal the rapport she and F have built up through visits and outings, and their friendship was evident from their interaction.
G outlined for the Tribunal the training she underwent and her willingness to take on responsibility for F's medical treatment and how she would approach decisions, and she described the guidance and support available to her from the Office of the Public Advocate.
In response to questions from the Tribunal, G said that she felt she could handle day to day issues that might come along but there could be medical matters too serious for her to make decisions about; in such cases she would consult the Office of the Public Advocate but, if the matter was serious, it would not be she who would decide. She told the Tribunal that, if a doctor told her there was something serious, she would inform the Office of the Public Advocate, and she could probably handle the matter unless the Office decided it wanted to handle it.
The Tribunal asked G what she would do if, having consulted the Public Advocate about a particular decision, she thought a different decision should be made. She felt any difference would be resolved through discussion, taking F's wishes into account, but she would need some guidance; as she got to know F better, in time, she would feel she might know what was in his best interests.
It is evident that, at least in relation to more serious decisions, G regards the responsibility as effectively joint as between her and the Public Advocate although G was clear that, in time, she believed she would know what was in F's best interests.
Is there a less restrictive means of meeting F's needs
A principle to be observed by the Tribunal in proceedings under the GA Act is that 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 GA Act provides a means by which consent to treatment and health care can 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).
The question arises whether G meets the criterion in s 119(3)(e), being a person who maintains a close personal relationship with F, obviating the need for a formal appointment.
G is establishing frequent personal contact with F and has a personal interest in his welfare. At the same time, her relationship with him is relatively new and still developing. A practical consideration is that, at least during the time when their relationship is developing, a formal appointment would make it clear to F's carers and doctors that G has the authority to make decisions on his behalf. The Public Advocate supports a formal appointment on this ground and the Tribunal agrees.
There is the potential for uncertainty in relying on s 119(3)(e) as the means by which G can consent to F's treatment. The Tribunal does not consider s 119(3)(e) realistically offers a less restrictive means of meeting F's needs than a formal appointment and finds it in his best interests that a guardian be appointed.
The Memorandum of Understanding
Under the proposed arrangement, G would be required, if appointed guardian for F, to sign a Memorandum of Understanding (MOU) with the Public Advocate.
A copy of the MOU is before the Tribunal. It outlines the respective responsibilities of the community guardian and the Public Advocate under the CGP. Responsibilities of a community guardian include:
"To make relatively straightforward decisions on behalf of a represented person within the functions specified in the order, e.g. medical treatment.
…..
All day to day decisions related to the authorities in the order can be made by a community guardian.
Decisions that are highly complex in nature, contentious or are disputed must be discussed with the Public Advocate's Community Guardianship Program Coordinator."
The MOU then sets out in detail the kinds of decisions within particular authorities that must be referred for advice. Examples are given of "complex or significant" medical treatment that must be referred for advice.
The MOU evinces the intention that a community guardian will exercise her authority alone only in relation to "relatively straightforward" or "day to day" decisions.
The mere fact that a community guardian must refer more complex matters to the Public Advocate for advice and guidance does not mean that the community guardian does not in the end make the decision herself. But the likelihood is that, in fact, such decisions will be made together, as G described in her oral evidence, in effect making hers a joint appointment with the Public Advocate. In the Tribunal's view, the MOU would operate to fetter G's discretion and decision‑making authority.
Since the hearing, the Public Advocate has suggested that, if the MOU would be seen to fetter G's authority as guardian, she would not be required to sign it. However, it is clear from G's evidence that, regardless of any MOU, she expects at this stage to make only relatively straightforward, day to day decisions on her own, to make some other decisions in consultation, and some she might not make at all. It is also clear that she anticipates this will change in time as her relationship with F and her understanding of his needs develops.
Although F's treatment needs at present are straightforward or day to day, the possibility of more complex decisions during the period of any appointment cannot be discounted.
To be suitable within the meaning of the GA Act, a guardian must be in a position to exercise the full range of decision‑making that might be required.
In the Tribunal's view, it is in F's best interests that the Public Advocate be formally appointed and that G have the opportunity to consult with the Public Advocate and, in effect, make decisions jointly for an initial period, as was contemplated by the MOU. This is not intended in any way to reflect on G's commitment to F and the CGP.
The Tribunal considers that it is in F's best interests that the Public Advocate's appointment as his limited guardian be confirmed for a period of 12 months and that the Public Advocate be authorised to delegate her authority to G during that period.
The Public Advocate's power of delegation
In oral evidence, representatives of the Public Advocate submitted that the GA Act does not permit delegation by the Public Advocate of her authority to persons outside of her office. However, the Public Advocate has not pressed this point and, for the reasons set out below, the Tribunal is of the view that the GA Act allows the Public Advocate to delegate to a community guardian.
Section 95 of the GA Act sets out the Public Advocate's powers of delegation as follows:
"(1)The Public Advocate may either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate to an officer appointed under section 94 any function of the Public Advocate other than -
(a) this power of delegation; and
(b)except as provided in subsection (2), his functions as a guardian or administrator.
(2)Where the Public Advocate is a guardian or administrator, he may with the approval of the [SAT], either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate any of his functions as guardian or administrator, including this power of delegation, to any person specified in the instrument of delegation.
(3)The [SAT] shall not approve a delegation by the Public Advocate under subsection (2) to a body corporate unless it is satisfied that there is no individual willing and suitable to act as delegate.
(4)An application for the approval of the [SAT] under subsection (2) shall be made ex parte, or [SAT] may give directions as to the persons to whom notice of the application shall be given and who shall be entitled to be heard."
The Tribunal cannot discern in these provisions anything that precludes the Public Advocate from delegating her authority to a community guardian or any other person whose involvement she considers to be in the best interests of a represented person.
Currently, the Tribunal as a matter of course, where it appoints the Public Advocate, authorises her pursuant to s 94(2) to delegate her functions as guardian or administrator to an officer or employee employed in her office under the Public Sector Management Act 1994 (WA) (the PS Act).
The PS Act provides that, subject to any other written law, chief executive officers and chief employees may delegate to an employee any of her powers and duties under that Act other than the power of delegation: s 33. However, nothing in the GA Act limits the Tribunal to authorising the Public Advocate to delegate her function as guardian or administrator to an employee.
The Public Advocate may delegate any of her functions to an officer appointed to assist her other than the power of delegation and, except as provided in s 94(2), her functions as guardian or administrator: s 94(1).
The Public Advocate may delegate her function as guardian or administrator with the approval of the SAT to any person specified in the instrument of delegation: s 94(2).
The SAT shall not approve a delegation to a body corporate (emphasis added) unless there is no individual willing and suitable to act as delegate: s 94(3). By implication, s 94(2) allows the SAT to authorise delegation by the Public Advocate to a body corporate. A body corporate cannot be an employee within the meaning of either the PS Act or the GA Act. It follows that "any person" in s 94(2) is not confined to officers or employees of the Public Advocate.
Conclusion
The Tribunal welcomes the development of the CGP and believes it will benefit those persons with a disability for whom a community guardian is appointed.
In the Tribunal's view, F's best interests are served by confirming the appointment of the Public Advocate as limited guardian for F with authority to consent to treatment and health care and authorising the Public Advocate to delegate her function to G. The appointment will be for 12 months at the end of which G's relationship with F could be a close, personal relationship such that she would have authority to consent to medical treatment by virtue of s 119(3)(e); alternatively, she could be suitable to be appointed sole guardian.
Orders
1.The Tribunal confirms the appointment of the Public Advocate as limited guardian for F with the function of consenting to treatment and health care.
2.The Public Advocate is authorised to delegate her function to G as community guardian for F.
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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