| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : PUBLIC ADVOCATE and JD [2009] WASAT 240 MEMBER : MS M JORDAN (SENIOR SESSIONAL MEMBER) HEARD : 29 OCTOBER 2009 DELIVERED : 4 DECEMBER 2009 FILE NO/S : GAA 2433 of 2009 BETWEEN : PUBLIC ADVOCATE Catchwords: Extending function of guardian to include where he should live and with whom - Paranoid delusions concerning coresident sister - Inability to discharge from hospital to alternative accommodation as represented person refuses to live elsewhere Legislation: Guardianship and Administration Act 1990 (WA), s 4(2)(c), s 43(1)(a)(b)(c), s 43(4), s 86, s 86(1)(a), Div 3 Pt 5
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Result: The application is allowed Category: B
Representation: Counsel:
Applicant : Self-Represented
Respondent : Self-Represented
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Nil
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 The applicant, the delegated guardian for JD, made application to extend the list of functions to include where JD is to live and with whom. The application was made as a result of JD’s incarceration in an authorised psychiatric hospital since June 2009 and being unable to be discharged to his home due to paranoid delusions concerning his sister who resides at that home. JD is opposed to moving to a psychiatric hostel as proposed by his treating team. JD cannot be supported by the treating team at his residence both because of his delusions and the inability to ensure that he receives his treatment as he is unable to be supervised at that residence. JD has a 1/3 interest in the residence which has not as yet been devolved to him by his sister who is the executrix of their mother’s will. The Tribunal extended the list of functions presently held by the guardian, being to decide treatment and services, to also include where JD should live and with whom he should live.
Background 2 The Public Advocate was appointed as limited guardian for JD on 7 December 2007 with the functions to determine accommodation, health care and services. When that order was reviewed on 12 January 2009, the function of accommodation was revoked at the request of the guardian who told the Tribunal that the accommodation function was no longer required. 3 At the time of the 2007 hearing, the Public Trustee was appointed as plenary administrator for JD and the present administration order is to be reviewed by the Tribunal by 12 January 2014. 4 For much of his life, JD has resided in the family home with other family, more recently, his sister BC and another brother. JD is a beneficiary of his late mother’s will in which she left a bequest of a 1/3 share of the family home to JD, the remaining thirds to his sister BC and another brother, other than the one sharing the residence. BC is the executrix of their mother’s estate and she told the Tribunal that although she has received a grant of probate, she has not as yet done anything to give effect to the bequest. 5 JD has been an inpatient of an authorised hospital since June 2009. JD has a long history of chronic paranoid schizophrenia and his treating (Page 4)
team recommend that he is unable to be supported in his home environment and requires supported accommodation such as a hostel. 6 JD’s guardian has made this application to have the accommodation function added to her list of authorised functions.
The hearing 7 The hearing was attended by PW, the delegated guardian for JD, BC and PJS, the case manager for JD. JD was to attend the hearing by telephone with arrangements made to contact the authorised hospital who would facilitate his attendance. However, on doing so, JD could not be found. It was anticipated by staff that JD had, as was his habit, left the hospital at 10 am to go for a coffee. It was known to all in attendance that this was a regular habit of JD and it was unfortunate that the Tribunal was not aware, otherwise, the time of the hearing could have been scheduled differently. 8 PW referred to the report received from Dr MV who is currently treating JD. This report provides the following relevant information: • JD has a diagnosis of chronic paranoid schizophrenia and presently holds persecutory delusions regarding his sister, which have not modified with optimisation of his antipsychotic medication. • Prior to his hospitalisation, JD was living in the family home with his brother and sister. • JD allegedly assaulted BC in response to his delusions. JD believes that she is an imposter and is trying to harm him. • With regard to JD’s mental state, he is not confused or disoriented but holds persecutory delusions about his sister. He is able to converse appropriately unless his sister, house or alternative accommodation options are raised. • With regard to JD’s assessment, he does not appear to understand the physical consequences of assaulting his sister. • Dr MV recommends that JD needs a guardian with authority to manage his accommodation decisions. (Page 5)
9 PW provided the Tribunal with a written report which can be summarised as follows: • JD has been an inpatient at the authorised hospital since June 2009, being detained as an involuntary patient; • JD cannot be discharged to his home, even under a Community Treatment Order, as he is unable to be supported in his home environment. • JD is adamantly opposed to be placed in alternative accommodation. • Perhaps an alternative manner of dealing with the issue would be to have where he resides as a condition of his Community Treatment Order upon discharge. • PW told the Tribunal that at the last review of the guardianship order in January 2009, JD was quite stable in terms of his illness and was manageable at home by the clinic staff under a Community Treatment Order to ensure he maintained his medication as he has no insight into his illness. Since then, JD has had a long period of being unwell in hospital. More recently, he has had increased paranoid delusions which have become a key factor. It has now got to the point where the treating team do not believe it is possible to support JD at his home. He cannot remain in the hospital indefinitely. The alternative is a psychiatric hostel but JD is opposed to this. Therefore, the guardianship order needs to have that authority so that JD can be discharged from the hospital. 10 BC told the Tribunal that although she has obtained a grant of probate of her mother’s estate, she has done nothing to give effect to the gift to JD. BC appeared quite evasive when asked about this. BC said that the cause for her delay in acting on the estate was because she had been away on holiday for 3 months. BC then said there were a number of matters that needed to be attended to before she could consider what to do. When pressed, those matters seemed to be of a domestic nature such as an issue with a neighbour over a fence. Again when pressed as to what action she would take to further the bequest, she said she was not sure but would have to consult with the other beneficiary. (Page 6)
11 When further pressed about the issue, BC produced a letter from the Public Trustee to her dated 6 August 2009 in which she was acknowledged as having received a grant of probate, but requesting both a copy of the will and a statement of assets and liabilities. BC told the Tribunal she had not responded to the letter and was urged by the Tribunal to do so. 12 When asked about the value of the house in question, BC claimed not to know. She said that she had obtained a valuation at the time for the probate papers but couldn’t remember what it said. Again, when pressed she said it might have been $500,000 but she was not sure, there was no figure then in her mind. 13 BC agreed that JD had for a time lived in a hostel. She could not remember the circumstances surrounding this or when it had occurred. She thought it was when her mother was still alive, perhaps about 5 years ago. BC said that the arrangement did not last as JD was assaulted in the hostel which upset him and he came home. 14 BC expressed her annoyance that the Tribunal had appointed public authorities to be JD’s guardian and administrator when she had looked after him for 30 years. BC was reminded that she was unable to be appointed as his administrator as she had a conflict of interest in managing his financial affairs when he was a beneficiary of an estate of which she was the executrix and that the bequest had intertwined their interests. 15 BC told the Tribunal that the problem with JD returning home was that he would not take his medication from her and she could not make him take it.
Relevant legislative provisions 16 Section 4(2)(c) of the Guardianship and Administration Act 1990 (WA) (GAA Act) states as follows: 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 the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person’s freedom of decision and action. 17 Section 43(1)(a)(b)(c) and s 43(4) of the GAA Act state as follows: 43. Making of guardianship order (Page 7)
18 Section 86(1)(a) of the GAA Act states: 86. Review on application (1) The State Administrative Tribunal may at any time on the application of Reasons for Decision
Capacity 19 The Tribunal accepted the written report of Dr MV who stated that JD has a diagnosis of chronic paranoid schizophrenia with delusions of a persecutory nature. The Tribunal therefore accepts that JD is in need of oversight, care or control in the interests of his own health and safety and for the protection of others. (Page 8)
Need 20 The Tribunal accepted the evidence of JD’s guardian who has been in communication with the treating team about the circumstances under which JD can be discharged after a very long admission. 21 The Public Advocate is presently the limited guardian for JD with the functions of treatment and services. The guardian has now requested an additional function of accommodation where he should live and with whom he should live. 22 It is the guardian’s view and that of the treating team that JD should not return to his residence as he cannot be supported at that accommodation. This is due both to the risk to BC and also to BC’s expressed inability to ensure that JD took his medication. The Tribunal accepts that as JD is not agreeable to reside elsewhere, he needs to have his guardian make that decision for him.
Less restrictive alternative 23 PW raised with the Tribunal, both in his written report and at the hearing, that a less restrictive alternative may exist if the treating team were to impose a condition on his Community Treatment Order when discharged stating where he should live. 24 Whilst it appears to be the treating team who have raised the issue with the guardian, it is not within the jurisdiction of the Tribunal to tell the treating team what conditions it should or should not impose on a possible Community Treatment Order. In any event, the Tribunal is unsure as to how such a condition could be enforced without a breach having first occurred, a breach notice being served upon him and upon maintaining the breach, JD being returned to inpatient care as a result of such a breach. This would not appear to be an effective way of dealing with the issue. 25 The Tribunal has therefore decided that there is no less restrictive alternative than adding the function of deciding where JD is to live and with whom he is to live to the guardian’s present list of authorities. 26 The Tribunal, however, notes that upon the guardian deciding that JD is not to return to his residence, the Tribunal recognises that this would mean JD is unable to return to a property of which he has a 1/3 interest, of the same magnitude as BC who presently also resides there. The Tribunal assumes that the Public Trustee will continue to pursue the issue with BC (Page 9)
to ensure that JD receives the distribution of his late mother’s estate to which he is entitled.
Order 27 Upon statutory review under s 86 of the Guardianship and Administration Act 1990 (WA) of an order dated 7 December 2007 concerning the represented person, JD, heard before Senior Sessional Member M Jordan on 29 October 2009, it is ordered that: 1. The order is amended so that it now reads: The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia be appointed limited guardian of the represented person with the following functions: a) To decide where the represented person is to live, whether permanently or temporarily; b) To decide with whom the represented person is to live; c) Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA) to consent to any treatment or health care of the represented person; and d) To determine the services to which the represented person should have access. 2. The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate. (Page 10)
3. This order is to be reviewed by 12 January 2014. |