Re C;
[2007] WASAT 10
•15 JANUARY 2007
RE C; EX PARTE I and D [2007] WASAT 10
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 10 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:756/2005 | 23 NOVEMBER 2006 | |
| Coram: | MS J TOOHEY (SENIOR MEMBER) MS F CHILD (MEMBER) MR J JAMES (SENIOR SESSIONAL MEMBER) | 14/01/07 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appointment of the Public Advocate confirmed | ||
| B | |||
| PDF Version |
| Parties: | I and D |
Catchwords: | Guardianship Review of order appointing the Public Advocate plenary guardian Munchausen's by Proxy – Mild intellectual disability – Represented person living with carers since order made – Represented person's wish to return to live with parents – Evidence that represented person had developed and matured Risk if returned to mother's care – Guardian still needed to make decisions in her best interests |
Legislation: | Child Welfare Act 1947 (WA) Guardianship and Administration Act 1990 (WA), s 4, s 43(1), s 90(1) |
Case References: | Children's Court Decision, Burton SM, dated 19 November 2002 Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : RE C; EX PARTE I and D [2007] WASAT 10 MEMBER : MS J TOOHEY (SENIOR MEMBER)
- MS F CHILD (MEMBER)
MR J JAMES (SENIOR SESSIONAL MEMBER)
I and D
Applicants
Catchwords:
Guardianship - Review of order appointing the Public Advocate plenary guardian - Munchausen's by Proxy Mild intellectual disability Represented person living with carers since order made Represented person's wish to return to live with parents Evidence that represented person had developed and matured - Risk if returned to mother's care Guardian still needed to make decisions in her best interests
Legislation:
Child Welfare Act 1947 (WA)
Guardianship and Administration Act 1990 (WA), s 4, s 43(1), s 90(1)
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Result:
Appointment of the Public Advocate confirmed
Category: B
Representation:
Counsel:
Applicants : Mr M Devlin
Solicitors:
Applicants : Young & Young
Case(s) referred to in decision(s):
Children's Court Decision, Burton SM, dated 19 November 2002
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Summary of Tribunal's decision
1 When she was 17, the young woman whom these proceedings concerned was declared by the Children's Court of Western Australia to be in need of care and protection. She was removed from her parents' care and had lived with carers since. After she turned 18, the Guardianship and Administration Board appointed the Public Advocate her guardian. Her parents sought review of that order.
2 The young woman had a long and complex medical history involving numerous admissions to hospital and surgical procedures; at different times she had been dangerously ill. The application for care and protection was made after doctors and hospital staff raised concerns that her mother might suffer from Munchausen's by Proxy, a condition in which one person induces physical or psychological symptoms in another for complex reasons that are not fully understood.
3 The Tribunal took into account the findings of the Children's Court and the Board and found the most probable explanation for the young woman's condition, and her recovery once removed from her mother, was Munchausen's by Proxy. It found that, despite evidence that she had developed and matured since the order was made, she remained vulnerable and was in need of oversight, care and control in the interests of her own health and safety.
4 In the period since she had lived with her carers, the young woman's address and the identity of her carers had not been disclosed to her parents, although they had had supervised contact for some time. This was because, in the view of her guardian, the risk to her of unregulated, unsupervised contact was too great. In particular, the mother's denial of Munchausen's by Proxy and unwillingness to undergo family or other counselling made the chance that she had recovered remote.
5 The Tribunal accepted that the young woman wished to return to live with her parents. However, it found that, in the absence of a guardian who would regulate and supervise contact with her mother, there was a risk that she would again become seriously ill; the risk was sufficiently real that she remained in need of a guardian to decide whether she should live and with whom she should have contact.
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6 The Tribunal confirmed the appointment of the Public Advocate as guardian but made the order limited rather than plenary as it was satisfied that a limited order was sufficient to meet the young woman's needs.
7 The original version of these reasons, which was provided to the applicants and to the Public Advocate, contained information that would identify the young woman the subject of these proceedings. This version, produced for publication on the Tribunal's website, has been amended by deleting identifying information.
Background
8 When she was 17, C was admitted to Princess Margaret Hospital (PMH), having been transferred from a country hospital where her condition had deteriorated. She was receiving nutrition by means of a jejunal stoma, was grossly underweight and showed physical signs of malnutrition. Her deteriorating condition was later found to be due to an overdose of paracetamol.
9 While she was in PMH, features of C's condition and aspects of her relationship with her mother led hospital staff to refer her case to the Department for Community Development (the Department). In particular, the hospital was concerned that C might be the victim of Munchausen's by Proxy (MBP), a condition in which a parent, most commonly a mother, induces injury and illness in her child and derives gratification from the attention of doctors and other health care professionals.
10 Not long after her admission to PMH, the Department applied to the Children's Court of Western Australia for an order declaring C to be a child in need of care and protection pursuant to the Child Welfare Act 1947 (WA). The following day, she was removed from her parents' care.
11 At a hearing some months later, lasting several days, the Children's Court heard evidence from a large number of medical and other professional witnesses including experts in their respective fields. The Court described many of the witnesses as being "of very high calibre" and "competent experts in their respective fields". The Court also heard evidence from C's father and her brother.
12 The Court handed down its decision shortly after the hearing. It found that C's mother was suffering from "Munchausen's Syndrome by Proxy" (sic) and that C was not strong enough to look after her own interests when her mother was involved. She was declared in need of care and protection and made a ward of the State until the day before she would turn 18.
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13 Shortly before C's 18th birthday, in anticipation of her becoming an adult, the Department applied to the Guardianship and Administration Board (the Board) for an order appointing a guardian for her. However, the Minister for Community Development, by order, extended her committal to care and protection to her 19th birthday, obviating the need for a guardian at that time.
14 The Department's application remained on foot and, shortly before she turned 19, the Board appointed the Public Advocate plenary guardian for C for five years. Shortly before that date, the Department had applied to the Board for the appointment of an administrator to manage C's financial affairs on her behalf. The Board appointed a member of her extended family her plenary administrator, also for five years.
15 On 24 January 2005 the State Administrative Tribunal assumed the functions previously carried out by the Board.
16 In May 2005, C's parents sought review of the Board's orders.
17 For reasons which do not matter here, some months after C's parents lodged their applications, the appointment of the administrator was revoked on an application by the Public Trustee. Since then, C has managed her own financial affairs with the help of the carers with whom she lives.
18 As the administration order has been revoked, this decision concerns only the application for review of the guardianship order. The proceedings have involved a number of preliminary and directions hearings, and several adjournments for C's parents to obtain evidence in support of their application.
Evidence before the Tribunal
19 We have before us the papers, including extensive medical and other reports, from the Board proceedings and in these proceedings. They include the written reasons for decision delivered by the Children's Court.
20 The Tribunal held a hearing on 23 November 2006 and heard oral evidence from C, her parents brother and cousin; the worker who currently supervises visits between C and her parents; the delegate of the Public Advocate who is C’s guardian; a senior social worker from the Disability Services Commission; and Dr Hugh Cook, a child and adolescent psychiatrist who was called by the Tribunal as an expert witness.
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21 We also heard evidence by telephone from the family with whom C has lived for approximately two years. They are referred to here as her carers. They are not identified because the Public Advocate has decided, as C's guardian, that it is in her best interests that her parents not know the identity of her carers or where they live, so that contact between them and C can be strictly regulated and supervised.
22 We have relied in particular on a number of reports from doctors and other professionals, some of which were prepared for the purposes of the Children's Court proceedings, some for the Board's proceedings and some for the current proceedings. (Details of the authors and the dates of their reports have been deleted).
23 We also have before us reports from the Public Advocate, one of which, dated 14 September 2005, was the subject of discussion at a directions hearing on 22 September 2005. Counsel for C's parents at the time objected to parts of the report that purport to reflect comments made by C's mother in a meeting with the Public Advocate's delegate. It was submitted that those parts should be struck from the record for reasons of procedural fairness in that C's mother was not aware of the purpose of the conversations in which she allegedly made certain comments; further, that the report contained factual errors. The Public Advocate's delegate maintained that C's mother was aware that their conversation was in preparation for the Tribunal hearing but accepted that there was at least one factual error in her report. This particular report is not material to our decision. In the circumstances, we think it would be unsafe to rely on it and give it no weight.
C's medical history
24 C was diagnosed with a mild intellectual disability after testing when she was nine years old and again when she was 11 and 17. When she started primary school, she went into a special class and, with speech and occupational therapy, and help from her parents, she progressed well. She later entered a special education class at her local high school and was still at school there when she was removed from her parents' care. At different times her illnesses meant that her attendance was sporadic.
25 Dr Hugh Cook, a child and adolescent psychiatrist, was called as an expert witness in the Children's Court proceedings and by the Tribunal in the current proceedings. His opinions then and now are based on a review of
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- summaries of C's clinical files from her local hospital and PMH and the medical reports referred to above, and not on any direct contact with C or her parents. We have relied on his report compiled in late 2002 as a convenient summary of C's medical history.
26 In his report, Dr Cook noted that C had undergone "a very considerable range of symptoms, diagnoses, investigations and procedures, including a range of surgery". The records confirmed treatment for ongoing constipation, abdominal pain and vomiting, urinary tract infections, chest infections and asthma, and attention deficit disorder. Surgery included anal stretch, rectal biopsy, eye and knee surgery, appendectomy, laparoscopy and jejunostomy to provide food directly into her small bowel. When she first presented at PMH, some years before the admission which led to the care and protection proceedings, she had a history of Perthes disease, pneumonia, ingestions, mouth ulcers requiring intravenous re-hydration and she had developed convulsive seizures. She had also suffered from sleep disorders, stomach ulcers, weight loss, unexplained vomiting and epilepsy. There were times when she would become suddenly unwell, appear vague, lethargic, irritable and at times disoriented. She had a great deal of difficulty maintaining a safe weight and was at times dangerously ill. Dr Cook noted that nearly all investigations were negative.
27 By the time she was 17, C had been admitted to her local hospital more than 140 times and to PMH several times over a period of about ten years. When she was last admitted, it was to the intensive care unit. Her deteriorating condition was later found to be due to an overdose of paracetamol. Her paracetamol level was 330 whereas the therapeutic range is between 5 and 28. According to a child psychiatrist at PMH, whose written report we have before us, although on her admission C was grossly underweight, while at PMH she was reintroduced to oral feeding and her weight and cognitive functioning improved; she became more independent and was acting in a manner more appropriate to her age. She was discharged some months later.
Munchausen's by Proxy
28 Munchausen's by Proxy, also known as Factitious Disorder by Proxy, is a diagnostic label applied to circumstances in which one person induces or simulates physical or psychological signs or symptoms in another in order to gain attention. Typically the victim is a young child and the perpetrator the child's mother. The core pathology is in the mother and, when separated, the child's frequently bizarre illnesses cease: Dr Hugh Cook, 15 October 2002; see also American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Washington DC, 2000.
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29 MBP is relatively uncommon. It is often difficult to diagnose at the time and in some cases is recognised only once the child is separated from the mother and her health improves. It is also difficult to prove, there commonly being no direct evidence of symptoms being induced or simulated. Dr Cook describes MBP as a dangerous condition in which the induced illnesses are often life-threatening and not uncommonly fatal.
30 According to the material before us, concerns about C's health, including the possibility of MBP, had been raised on several occasions. Dr Cook noted from the PMH records that there was discussion some years previously of her mother's behaviour and C's dependence on her. The clinicians did not know what to do and the Psychiatry Department became involved, including meeting with the family. At a later admission to PMH, clinicians were becoming alarmed at C's unusual and recurrent illnesses. There was talk of a family conference but it is not clear whether this in fact occurred.
31 In 2001, a person who appears to have been the Director of Nursing at C's local hospital requested a through review of C's illnesses after she became concerned about her multiple admissions and presentations at hospital and her mother's poor compliance with suggestions for her management.
32 In the same year, a consultant paediatrician, wrote to C's general practitioner about the possibility of MBP. At the time, C weighed 29 kilograms, she had shaking hands and was confined to a wheelchair; she had had seven inpatient episodes and 12 presentations to the emergency department of her local hospital in the previous 12 months. It was noted that she was not regularly attending appointments and that she could tolerate solid food at hospital but apparently not at home.
33 Another paediatrician examined C at PMH during her last admission and concluded, based on her history and her presentation at PMH that, as well as having some definite organic medical illnesses, she displayed the features of MBP. He had suspected MBP after C had been treated on many occasions for medical problems that were difficult to explain and after her mother had not followed up on treatments and appointments. He found the fact that a significant component of C's illness resolved under careful supervision in hospital was entirely consistent with MBP.
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34 Dr Cook had no doubt, when he reviewed the summaries of the clinical files, that C had been "severely abused" by her mother; at times she was critically unwell and could have died. He remains of the view that, although circumstantial, the evidence of MBP in C's case is overwhelming and reinforced by the dramatic improvement in her health once removed from her mother's care. Since then she has rapidly developed into a physically normal young woman although with "much emotional vulnerability". Dr Cook has told us that he finds in this very clear support for the diagnosis of MBP and that he cannot think of any other reasonable explanation for C's recovery in light of her previous history.
35 In his written reasons for his decision, the Children's Court magistrate outlines various allegations made about C's mother including that she had caused C to be malnourished and had assisted in causing her to vomit; also that she had overdosed C with paracetamol and had tried to administer eucalyptus oil to her while at PMH, neither of which, he notes, was proved. He refers also to C's mother having been found at PMH sleeping in bed with her daughter and the allegation that, while there, she interfered frequently with the amount of food C was receiving. Although it is not clear the extent to which the Court accepted each individual allegation, the magistrate states that C's mother "certainly interfered with her daughter's drip" at her local hospital.
36 The Court's reasons refer to the opinion of another experienced specialist that C's mother did not suffer from MBP. However, the magistrate finds "that is not the case now based on the evidence, albeit documentary, not personal of Dr Cook". In the event, he declared C in need of care and protection until the age of 18.
37 C's mother emphatically denies any suggestion that she has been involved in harming her daughter. She attributes many of C's medical problems to the Dexamphetamine she was prescribed at the age of 14 when she was diagnosed with Attention Deficit Disorder and which, she says, made C vomit and lose weight very quickly. She ascribes C's recovery to the fact she is no longer taking that drug. Dr Cook does not accept this explanation.
38 C's parents and her older brother, as well as her cousin who lived for a period with the family, all describe a happy upbringing in a loving, supportive family where weekends were often spent with relatives, in the bush, camping, having barbeques, listening to music and dancing. C was evidently a much-loved member of the household and there were many happy occasions.
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39 Despite this, however, we are satisfied, on the evidence before us, that the most probable explanation for C's illnesses is that her mother was suffering from MBP. The weight of the evidence is clearly in favour of a diagnosis of MBP. The doctors are specialists and all experienced in working with children. Their reports approach the situation cautiously and carefully and all are firmly of the view that C's mother suffers from MBP. Their views are contradicted only by C's mother. We prefer their evidence and the opinions of the other professionals to that of C's mother. Although she denies emphatically harming her daughter, no other plausible explanation has been offered to us, in particular for C's almost complete absence of symptoms since removed from her mother.
40 We find support for our conclusion in the findings of the Children's Court, made after five days of evidence including from the doctors whose reports are before us.
41 The questions we have now to determine are whether C is a person for whom a guardian can, and should, be appointed.
The law and principles to be observed
42 If it is to appoint a guardian for C, the Tribunal must be satisfied, firstly, that C is: -
(i) incapable of looking after her own health and safety;
(ii) incapable of making reasonable judgments in respect of matters relating to her person; or
(iii) in need of oversight, care or control in the interests of her own health and safety or for the protection of others.
43 Secondly, the Tribunal must be satisfied that C is in need of a guardian: s 43(1), Guardianship and Administration Act 1990 (WA) (the Act).
44 The principles which the Tribunal must observe in reaching its decision are set out in s 4 of the Act. As they apply here, they are:
• the Tribunal's primary concern must be C's best interests;
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- • she is presumed capable of looking after her own safety and health, and of making reasonable judgments in respect of matters concerning her person, until the Tribunal is satisfied to the contrary;
• a guardian shall not be appointed if C's needs could be met by other means less restrictive of her personal freedom of decision and action;
• a plenary guardian shall not be appointed if a limited guardian would be sufficient to meet her needs;
• an order appointing a limited guardian must be in terms that impose the least restrictions possible in the circumstances on C's freedom of decision and action; and
• the Tribunal shall, as far as possible, seek to ascertain C's views and wishes.
45 On a review of an order, the Tribunal may confirm, amend or revoke the order, or revoke it and substitute another order for it: s 90(1) of the Act. This is a review de novo and we are not bound in any way by the previous decision of the Board. We have to reach a decision applying the relevant law to the facts as we find them today. In doing so, however, evidence of matters in the past, including evidence that was before the Board, may be relevant.
Is C in need of oversight care or control in the interests of her own health and safety
46 We have heard evidence, which we accept, from C's parents, her carers, her guardian and others involved in her care that, over the past four years, her social skills have developed and she is involved in a range of activities independently of her carers. We have heard that she has been studying, has a part-time paid job and does voluntary work. We can see, from observing her over the course of these proceedings, that her confidence has developed and that she has matured.
47 Dr Cook acknowledges, based on material provided to him by the Tribunal, that C is now a much more mature young woman who has developed some independence and autonomy and is less enmeshed with her mother. He finds the evidence of her increased maturity and independence from her mother "encouraging" and considers it likely that the nature of her relationship with her mother has changed. However, he is concerned that she is still vulnerable. In his view, she remains a person in need of oversight, if for no other reason than the risk, which he cannot quantify, that she may be harmed in a close relationship with her mother.
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48 The representative of the agency which now supervises C's weekly visits with her parents, has told us that she believes C is developing quite well and interacts with her family a lot better now.
49 C's carers, who are a married couple, gave evidence by telephone. They confirm her growing independence and maturity but say also that she needs reminding about things like her personal hygiene and she needs "boundaries" imposed. Her female carer described to us how C can become "a bit obsessive", "always" hugging and kissing her, and she described similar behaviour towards particular women whom C would single out at her place of work, at the place where she has been studying and the place where she does voluntary work.
50 C was assessed by a psychologist for the purposes of the Board's hearing and again in 2006 for the purposes of these proceedings. The psychologist was not available to attend the hearing on 23 November 2006 and could not therefore be questioned by counsel for C's parents, in particular about his most recent report. However, the report was made available to counsel prior to the hearing. In his opinion, C seems still to seek "physical enmeshment with adult women", although this is slowly diminishing, and she remains very vulnerable to exploitation by others, especially from family, relations and friends. He believes she will continue to make gains but it could take her another four to six years to develop sufficient autonomy to live independently.
51 The Public Advocate's delegate reports that, based on her contact with C and her mother, and reports of her carers and others, C has demonstrated a growing independence and ability to assert herself. However, based in particular on the observations of the supervisor of their visits, C is still "extremely dependent" on her mother's approval and continues to be highly suggestible and eager to please, especially in her interactions with her mother; she would not be able to continue to develop independence if she returned to live with her parents and, at worst, her physical health could be at risk.
52 We accept the evidence of C's host family and others that she remains suggestible and vulnerable to exploitation by others. How much that is due to her intellectual disability and how much to her relationship with her mother and her mother's MBP is difficult to say but, in any event, we are satisfied, on the evidence before us, that she is in need of oversight, care and control in the interests of her own health and safety.
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Is C in need of a guardian
53 The mere fact that C is in need of oversight and care does not mean that she is in need of a guardian. We are bound to consider whether there is any means of meeting her needs that is less restrictive of her freedom of decision and action than a formal appointment.
54 C has said repeatedly that she wants to return to live with her parents or with her cousin. There is evidence from the supervising agency and from C's carers that, more recently, she has said that, if she cannot live with her parents, she is happy to remain living with her carers. Nevertheless, we accept it is her wish to return to her parents and, given the opportunity, that is what she would likely do.
55 Dr Cook has told us that he would have concerns about how C and her mother would "sort out their relationship" if C was living at home full-time. However, the risks might be mitigated by ongoing monitoring and surveillance in the form of someone checking that C's health has remained reasonable, that she is happy, and that her parents are happy about how their resumed relationship is getting on.
56 Dr Cook has given evidence that the outlook where a parent refuses to accept their part in their child's condition may be poorer than where it is accepted. If counselling or therapy have in fact been offered and declined, the risk is increased and would make it more difficult to monitor what is going on if contact is resumed; in either case, it is difficult to assess the measure of the child's vulnerability and the risk to her.
57 Some of the evidence before us indicates that C's mother has been offered in the past, and has refused to attend, any form of counselling. C's mother disputes this. In any event, there is no evidence that she has in fact undergone any form of counselling or therapy and she has denied strenuously in these proceedings any part in harming her daughter.
58 Dr Cook agrees with the opinion of another professional whose report we have that, where child abuse is substantiated and the parents are in denial, the risk to the child remains high. We are satisfied that C's mother has suffered in the past from MBP, that it was the cause of C's unexplained illnesses some of which led to her being dangerously ill. In the face of her mother's continued denial of her condition, we are satisfied that there is a real risk to C's health and safety if contact with her mother is not regulated and supervised.
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59 It appears, from the evidence before the Children's Court, the Board and the Tribunal that no one in the extended family, other than her aunt, accepted that C had been harmed when in her mother's care. The Children's Court concluded that her father was "no match" for her mother. Although members of the extended family, including her cousin and her grandmother, are now in contact with C, they do not accept the finding of MBP and so cannot in our view provide the necessary monitoring and supervision should she return to live with her parents.
60 It is not for us to make the decisions that a guardian would make. It may be that, in time, the Public Advocate will decide that C should have more contact with her parents and her mother in particular. It is possible that she will decide in time that C can live at home again. But those are decisions for the guardian to make. In the meantime, it is probable that, without a guardian making decisions for her about where she is to live and with whom she is to have contact, C would return to live with her mother. In our view it is not currently in her best interests for her to make that decision herself: a guardian is needed to make it for her.
61 It has been submitted for C's parents that, should the Tribunal decide to confirm the appointment, their joint appointment with the Public Advocate or some other government department would be appropriate. We do not accept, in all the circumstances, that such an appointment would be appropriate. Joint guardians need to act unanimously and in co-operation with each other. It is evident that the relationship between C's mother and the Public Advocate has been difficult, especially given C's mother's denial of her condition. They are so at odds as to what is in C's best interests that we cannot see how an order jointly appointing them could be given effect to.
62 In our view, a plenary guardian is not required. We are satisfied that a limited guardian with authority to make decisions concerning where C is to live, with whom she should have contact, what services she requires, and to consent to treatment and health care, would meet her needs. We appoint the Public Advocate for that purpose.
63 The order will be reviewed by 14 April 2009.
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Orders
64 The order made on 14 April 2004 by which the Public Advocate was appointed plenary guardian for C is revoked and the following order substituted for it:
1. The Public Advocate of 30 Terrace Road, East Perth, Western Australia is appointed limited guardian for C with authority to:
(i) determine where, and with whom, she is to live, whether temporarily or permanently;
(ii) determine with whom she should have contact;
(iii) determine the services she requires; and
(iv) subject to Division 3 of the Guardianship and Administration Act 1990 (WA), consent to any treatment or health care.
2. This order is to be reviewed by 14 April 2009.
I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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