RG

[2006] WASAT 265

RG [2006] WASAT 265

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 265
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:414/2006	Heard:	5 APRIL 2006 AND 13 JUNE 2006
Coram:	MS F CHILD (MEMBER)	Delivered:	1/09/06
No of pages:	23	Judgment Part:	1 of 1
Result:	Public Advocate appointed plenary guardian Public Trustee appointed plenary administrator
Category:	B
PDF Version

Parties:	RG
Catchwords:	Guardianship and Administration Psychiatric illness Involuntary patient under the Mental Health Act 1996 Need for a guardian to determine where she should live, to consent to services, medical treatment and contraception, and to act as guardian ad litem for legal proceedings – Section 110 of the Mental Health Act – Role of Chief Psychiatrist – Community treatment order
Legislation:	Guardianship and Administration Act 1990 (WA), s 4, s 43, s 43(1), s 43(1)(b), s 44(5), s 50, s 51, s 64, s 64(1) Mental Health Act 1996 (WA), s 26, S 26(1)(b), s 68, s 68(1)(b)(i), s 110 State Administrative Tribunal Act 2004 (WA), s 78
Case References:	AB [2005] WASAT 303 DON [2005] WASAT 193 Donaldson v Broomby (1982) 40 ALR 525 EO v MHRB [2000] WASC 203 MM and the Mental Health Review Board (Unreported; Supreme Court; Library No 990093; 4 March 1999) MM and the Mental Health Review Board, unreported; Supreme Court; Library No 990093; 4 March 1999 NCK [2004] WAGB 6 Re LGW [2004] WAGAB 4 Re MC [2004] WAGAB 5 Nil

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : RG [2006] WASAT 265 MEMBER : MS F CHILD (MEMBER) HEARD : 5 APRIL 2006 AND 13 JUNE 2006 DELIVERED : 1 SEPTEMBER 2006 FILE NO/S : GAA 414 of 2006 BETWEEN : RG

Represented Person

Catchwords:

Guardianship and Administration - Psychiatric illness - Involuntary patient under the Mental Health Act 1996 - Need for a guardian to determine where she should live, to consent to services, medical treatment and contraception, and to act as guardian ad litem for legal proceedings – Section 110 of the Mental Health Act – Role of Chief Psychiatrist – Community treatment order

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 43, s 43(1), s 43(1)(b), s 44(5), s 50, s 51, s 64, s 64(1)

Mental Health Act 1996 (WA), s 26, S 26(1)(b), s 68, s 68(1)(b)(i), s 110
State Administrative Tribunal Act 2004 (WA), s 78

Result:

Public Advocate appointed plenary guardian

(Page 2)

Public Trustee appointed plenary administrator

Category: B

Representation:

Counsel:

Represented Person : Self-represented at first hearing, No Appearance at second hearing

Solicitors:

Represented Person : N/A

Case(s) referred to in decision(s):

AB [2005] WASAT 303
DON [2005] WASAT 193
Donaldson v Broomby (1982) 40 ALR 525
EO v MHRB [2000] WASC 203
MM and the Mental Health Review Board (Unreported; Supreme Court; Library No 990093; 4 March 1999)
MM and the Mental Health Review Board, unreported; Supreme Court; Library No 990093; 4 March 1999
NCK [2004] WAGB 6
Re LGW [2004] WAGAB 4
Re MC [2004] WAGAB 5

Case(s) also cited:

Nil

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary

1 The State Administrative Tribunal appointed the Public Advocate as plenary guardian of a woman with a dual diagnosis of mental illness and substance misuse.

2 The psychiatric evidence before the Tribunal indicated that the woman was not capable of making decisions in relation to her personal matters or in relation to her financial affairs, and because of this, she was at risk due to the impact of her illness and her drug use on her living and financial situation.

3 The Public Trustee was appointed plenary administrator to manage her financial affairs.

4 The Tribunal did not accept the submission of the Public Advocate that the woman's accommodation and health care needs could be addressed under the provisions of the Mental Health Act 1996 (WA) as she was an involuntary patient under a community treatment order. The Tribunal determined that the woman was in need of a guardian, as the terms of a community treatment order which might in the future apply to the woman and require her to have treatment in a specified place, was not currently in force. Even if it were the case that such an order could be made in the future, the Tribunal concluded that the function of a guardian to determine where the woman should live was wider than the power to specify the place where she should receive psychiatric treatment and more fully addressed her needs.

5 The provisions in the Mental Health Act 1996 (WA) by which the Chief Psychiatrist can consent to medical treatment of an involuntary patient in an approved hospital did not apply to her as she was not in hospital.

6 Because of the extensive needs of the woman in all areas of her life, the Tribunal appointed the Public Advocate with plenary powers.

Background

7 Applications for the appointment of a guardian and an administrator for RG (the represented person) were filed with the Tribunal on 7 March 2006 by Ms Leigh Peterson, a Community Mental Health nurse and case manager (the applicant).

(Page 4)

8 The applications were referred by the Tribunal for investigation to the Public Advocate and were first heard in Geraldton on 5 April 2006, at which time the investigator from the Office of the Public Advocate (the Public Advocate) asked that the hearing be adjourned. The adjournment was sought so that less restrictive alternatives to the appointment of an administrator and a guardian could be investigated. The Public Advocate proposed that if appointments were to be made, the possible appointment of family or local community members should also be explored. The applicant did not oppose the adjournment and the applications were adjourned to allow further investigation by the Public Advocate.

9 The first hearing in Geraldton was attended by the applicant and the represented person in person, and the Public Advocate's representative attended by telephone.

10 The hearing was reconvened on 13 June 2006 and proceeded despite the represented person's refusal to attend the hearing. Both the applicant and a representative of the Public Advocate met with the represented person prior to the hearing and encouraged her to attend, without success. The applicant, Ms Janine Hawker, a representative of the Public Advocate, and Mr Kim Dick, an Aboriginal Liaison Officer from Mental Health Services, attended the hearing by video link from Geraldton. The Public Advocate's investigator, Ms Liz Palmela, attended the hearing in Perth.

11 Following the reconvened hearing, the Public Advocate was appointed plenary guardian and the Public Trustee plenary administrator for the represented person.

12 Oral reasons for the decisions of the Tribunal were delivered at the conclusion of the hearing. These written reasons are produced at the request of the Public Advocate pursuant to s 78 of the State Administrative Tribunal Act 2004 (WA).

Legislation

13 The legislation relevant to the applications is the Guardianship and Administration Act 1990 (WA) (GA Act). Reference was also made during the second hearing to provisions of the Mental Health Act 1996 (WA) (MH Act) in the submissions of the Public Advocate.

(Page 5)

14 In respect of the GA Act, s 43(1) provides that before a guardian can be appointed, the Tribunal must be satisfied that the person for whom an application has been made:

(a) has attained the age of 18 years;

(b) is ¾


(i) incapable of looking after his own health and safety;

(ii) unable to make reasonable judgments in respect of matters relating to his person; or

(iii) in need of oversight, care or control in the interests of his own health and safety or for the protection of others;

and


(c) is in need of a guardian.

15 Pursuant to s 64(1) of the GA Act, an administrator may only be appointed where the Tribunal is satisfied that a person in respect of whom an application for an administration order is made is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and is in need of an administrator of his estate.

16 Section 43 and s 64 of the GA Act for the appointment of a guardian and an administrator respectively are expressly subject to s 4 of the GA Act which provides:

"(1) In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in subsection (2).

(2)(a) The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.


(b) Every person shall be presumed to be capable of —

(i) looking after his own health and safety;

(Page 6)

(ii) making reasonable judgments in respect of matters relating to his person;

(iii) managing his own affairs; and

(iv) making reasonable judgments in respect of matters relating to his estate, until the contrary is proved to the satisfaction of the State Administrative Tribunal.

(c) 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.

(d) A plenary guardian shall not be appointed under section 43(1) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.

(e) An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.

(f) In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions."

17 In determining the appropriate appointment of a guardian, s 44(5) of the GA Act provides that unless she is appointed to act jointly with another person or persons, the Public Advocate shall not be appointed as a guardian unless there is no other person suitable or willing to act.

18 The Public Advocate referred to the following provisions of the MH Act in submissions made in the hearing that there was no need for a guardian under s 43 (1)(b) of the GA Act.

(Page 7)

19 Section 26 of the MH Act provides that:

"(1) A person should be an involuntary patient only if ¾

(a) the person has a mental illness requiring treatment;

(b) the treatment can be provided through detention in an authorised hospital or through a community treatment order and is required to be so provided in order ¾


(i) to protect the health or safety of that person or any other person;

(ii) to protect the person from self-inflicted harm of a kind described in subsection (2); or

(iii) to prevent the person doing serious damage to any property;

(c) the person has refused or, due to the nature of the mental illness, is unable to consent to the treatment; and

(d) the treatment cannot be adequately provided in a way that would involve less restriction of the freedom of choice and movement of the person than would result from the person being an involuntary patient.


(2) The kinds of self-inflicted harm from which a person may be protected by making the person an involuntary patient are ¾

(a) serious financial harm;

(b) lasting or irreparable harm to any important personal relationship resulting from damage to the reputation of the person among those with whom the person has such relationships; and

(c) serious damage to the reputation of the person."

(Page 8)

20 By s 26(1)(b), an involuntary patient can be treated through a community treatment order (CTO).

21 Section 68 of the MH Act provides for the terms of CTOs:

"(1) A community treatment order is to specify

(a) a psychiatrist who will be responsible for supervising the carrying out of the order;

(b) a treatment plan outlining the treatment that the patient is to receive under the order and including details of


(i) where and when the treatment is to be given; and

(ii) such other matters relating to the treatment as it is appropriate to specify;


(c) a medical practitioner or mental health practitioner who will be responsible for ensuring that the treatment plan is carried out; and

(d) the time when the order will lapse, being not more than 3 months after the order comes into effect.


(2) The order may include directions to the treating practitioner and to the psychiatrist who will be responsible for supervising the carrying out of the order as to reporting on the patient's progress."

22 Section 110 of the MH Act provides for consent to medical treatment of patients in some circumstances if approved by the Chief Psychiatrist. The section provides:

"(1) A person who is in an authorised hospital as

(a) an involuntary patient; or

(b) a mentally impaired accused,

may be given medical treatment, other than psychiatric treatment or treatment referred to in section 108, if it has been approved in writing by the Chief Psychiatrist.

(Page 9)

(2) Subsection (1) does not limit a power conferred by any other written law by which a person may consent to the medical treatment of another person."

Evidence and Material before the Tribunal

23 At the time of application, the represented person was an inpatient at Graylands Hospital (Graylands), but by the time of the first hearing she had been discharged on a CTO.

24 During the second hearing, the applicant confirmed that the CTO to which the represented person had been subject had been extended for a further three months to run until 31 July 2006. The terms of that order were that she attend for injections of anti-psychotic medication and allow contact from mental health workers (the applicant and Mr Kim Dick, the Aboriginal liaison worker).

25 The material before the Tribunal in support of the application includes psychiatric reports, clinical case review notes, integrated progress notes and correspondence from the applicant and from the Public Advocate.

26 Dr Raghu, the Regional Consultant Psychiatrist, who is the represented person's current treating psychiatrist, has known her for three years. In a report to the Tribunal dated 29 March 2006, he reports that she is incapable of making reasonable decisions in respect of her living situation, her health care and her financial affairs. The report notes that she has been a patient of Mental Health Services for over five years and has a diagnosis of "chronic undifferentiated schizophrenia" and multiple drug abuse, which she does not accept. It notes she has impaired concentration, and lack of insight and judgment.

27 The application submitted by the applicant refers to the represented person suffering a mental illness with erratic behaviour and vulnerability in the community. It states that she is aggressive when unwell and insightless to access help. It notes self neglect and impulsivity.

28 In respect of the application for administration, the application states:

"[The represented person's] vulnerability and poor judgement [sic] has resulted in her not having any furniture[,] belongings or food in her rental unit. She has no capacity for forward planning and poor day to day living skills including budgeting. She spends her pension impulsively with disregard for

(Page 10)

necessities needed over the fortnight. She has exhausted [the] ability to receive food vouchers from charitable sources in Geraldton for this year, 2006. [The represented person] does not have reasonable capacity to care for herself, refuses to attend a doctor to have TDR completed for Centrelink to ensure disability payments continue as she disputes she has schizophrenia[.] [A]s a result, her payments have been suspended and rent has not been paid. Homeswest are threatening to evict her. Electricity has been disconnected for some time."

29 The application proposes the appointment of the Public Trustee as administrator to manage the represented person's Centrelink pension "to safeguard her finances, to arrange food vouchers and to enforce savings to pay for furniture and yearly clean-up of her property".

30 The application for a guardianship order notes that the represented person's "inability to care for herself, inability to maintain accommodation and financial support, [inability] to make reasonable decisions about finances resulting in potential for harm, loss of shelter, [and] vulnerability [and that she is] needing to prostitute herself for food and drugs".

31 The applicant states that the represented person is the mother of two children removed from her care due to allegations of neglect. Her report states that the represented person is "hostile to Mental Health Services as she believes that Mental Health Services are responsible for [her] children being taken out of her care". It notes that the represented person's two children live with extended family, and that she has limited supervised contact with her daughter, aged two years.

32 The clinical review report submitted by the applicant refers to the represented person as being impulsive and verbally and physically violent towards family when unwell, and notes that she has "stabbed her step-father". It also refers to intermittent relationships with violent and drug addicted men and that the represented person "often goes missing for days at a time from her home".

33 The applicant notes that the Mental Health team is forced to offer inducements to the represented person such as fast food and cigarettes to achieve her compliance with injection of anti-psychotic medication.

34 The Public Advocate's report refers to a recent incident where the police were called to the home of the represented person due to concerns

(Page 11)

involving a leaking gas heater at the house and her refusal to stop smoking inside the house or allow access to the property for inspection and repair.

35 The report notes that the represented person had given an undertaking at the first hearing to agree to a clean-up of her property, but little had changed, and that the Department of Housing is "simply waiting for an outcome from this process before they begin the eviction process".

36 During the hearing, the applicant reported that a sewerage leak inside the property of the represented person had occurred and the house was flooded but that she had refused to allow a plumber access to the property.

37 A copy of a report by Dr Raghu, dated 3 August 2005, regarding the represented person's involuntary status under the MH Act refers to a diagnosis of the represented person in January 2003 with Hepatitis C when she was, at that time, 23 weeks pregnant. It reports that she refused medical treatment and this position continues to the present.

38 Following the adjournment, the Public Advocate reported contact with family members who were reluctant to become involved in the process as they considered that to take on the role of an appointed decision-maker would bring them into conflict with the represented person.

39 The report also notes the views of Mr Kim Dick, who has also known the represented person for some years, as now supporting the application, despite his earlier concerns that it was inappropriate. He is reported to have said that there was no-one in the Indigenous community in Geraldton who would be in a position to take on the role of decision-maker due to the represented person's opposition to the orders. An independent appointment was preferred. Mr Dick confirmed this during the second hearing.

40 The applicant is reported to consider that the housing situation of the represented person has deteriorated since the first hearing and she is in imminent danger of eviction. The applicant noted that the Department of Housing had, in the past, been prepared to transfer the represented person to a house in another area where it was thought that she would be at less risk of sexual exploitation, but she had refused to sign the transfer documents because they referred to her suffering a mental illness.

41 The applicant notes that the represented person is refusing all services including those from the Department of Community

(Page 12)

Development (DCD), Baptist Care, the Resource Centre, and Meals on Wheels. The services offered had included cleaning assistance, house maintenance, a yard clean-up, and the assistance of a housing worker.

42 The role of a guardian identified by the applicant included a decision of where the represented person was to live; either in her home if the eviction could be prevented; or in another property if a transfer was offered by the Department of Housing, or in a psychiatric hostel. The applicant stated that Mental Health Services were desperately trying to keep the represented person living in the community because this was her wish.

43 The represented person is said by the applicant to have numerous health problems as a consequence of being grossly under nourished, being an intravenous drug user, and what is assumed to be her unsafe sexual practices.

44 The applicant stated that during the last admission of the represented person to Graylands in February 2006, the applicant had spoken to a registrar at Graylands regarding concerns about the represented person's self-neglect, and had asked that liver function, kidney, diabetes, hypertension and thyroid tests be performed as the represented person had refused to see a general practitioner. The tests had not occurred because the represented person had refused. The applicant later stated that the represented person was discharged from Graylands once her psychosis was controlled, and within 20 minutes of landing in Geraldton, she had spent $180 on illicit drugs.

45 The applicant confirmed that the represented person had been subject to a CTO since 2002 and that she had never been discharged from that status. The applicant agreed that the CTO had not been an effective mechanism to deal with the living situation of the represented person.

46 Another issue which arose during the hearing was the need of the represented person to respond to proceedings brought by DCD in respect of her child. The applicant reported that DCD had apprehended the represented person's two-year-old daughter at birth and had recently applied to make that child a ward until the age of 18 years. Papers to this effect were served on the represented person in the week prior to the hearing. The represented person was reportedly "devastated" by this.

47 The applicant reports that the represented person has two children, both of whom have been apprehended by DCD. The older child,

(Page 13)

now aged five or six years, is in the care of his father, but the extent of the represented person's contact with this child is unclear.

48 In respect of contraception, the applicant states that the represented person is sexually active as it seems she prostitutes herself for food or for money to buy drugs or food. According to the applicant, as the represented person will not go to a doctor, it has not been possible to address her need for contraception.

Submissions of the Public Advocate

49 In respect of the application for an administration order, the representative of the Public Advocate referred to deductions from the pension of the represented person for the payment of rental and utilities as providing a less restrictive alternative to an administration order.

50 The representative of the Public Advocate expressed grave concerns about the appointment of the Public Trustee as administrator, as she considered there may be unintended consequences which would follow such an appointment. She noted that the represented person is addicted to illicit drugs, prostitutes herself for drugs, and without ready access to money, she would be placed at greater risk in attempting to obtain money for drug use.

51 In respect of the guardianship application, the submission by the Public Advocate is that the operation of the MH Act is the less restrictive alternative to the appointment of a guardian.

52 It was submitted that the MH Act could be used "more thoroughly" or "in its entirety" in treating the represented person's psychiatric illness and this would involve dealing with the accommodation issues.

53 It was argued that a CTO under the MH Act could specify "where and when the represented person received treatment" and that the MH Act was the appropriate instrument to monitor the represented person's situation through the CTO.

54 It was submitted that:

"[The represented person] seems to fulfil the requirements of section 26 of the Mental Health Act which deals with involuntary patients in particular and given the current concerns held by Mental Health Services around [the represented person]'s ability to remain in the community there may be some merit in exploring how one might extend the current CTO to

(Page 14)

encompass that. A CTO is by no means a long-term solution to these issues; however, it is an instrument that could be used more effectively to manage [the represented person]'s psychiatric issues and could be invoked until such time as some stability has been reached in [the represented person]'s situation."

55 The Public Advocate referred to Dr Raghu's report that notes that the resistance of the represented person to services and treatment is "part and parcel" of her psychiatric illness. The Public Advocate questioned why "there needed to be two instruments at play in [the represented person]'s life when it was submitted that 'the current instrument, being the MH Act ... ' has the ability to dictate where and when she receives treatment".

56 The Public Advocate noted that it appears that the represented person was not capable of living in the community given the recent events at her home including leaking gas and sewerage, and that Mental Health Services staff had to go to "extreme measures" to ensure her compliance with the CTO.

57 She submitted that the represented person's behaviours appeared to be related to her psychiatric illness, and on this basis, there was scope under the MH Act to deal with them. She considered that the MH Act had capacity to compel treatment and that if a CTO wasn't functioning to provide for suitable care and protection in the community, then other arrangements needed to be considered, such as the readmission of the represented person to Graylands.

58 In respect of the issues of medical treatment and dental treatment and monitoring of the represented person's diagnosed hepatitis, it was submitted that these needs too could be dealt with under the MH Act, through written consent given by the Chief Psychiatrist for that treatment. Medical treatment could be provided to the represented person following her involuntary admission into Graylands or some other authorised hospital.

59 The Public Advocate contended further that the appointment of a guardian was not workable, as the guardian would be unable to compel the represented person to live anywhere, to go anywhere or to have any treatment.

60 In relation to the wardship issues, it was asserted by the Public Advocate that there was no need for an appointment of a guardian to deal with this matter on behalf of the represented person, as whether the

(Page 15)

child was to be made a ward was a question for DCD and the Children's Court and that the position would "not be different in relation to the wardship of the daughter going ahead" if a guardian was appointed to act in respect of this issue.

61 The Public Advocate conceded that attention to the issue of contraception for the represented person was needed, as this was not within the scope of medical treatment under s 110 of the MH Act, but she questioned whether it was workable to provide an authority to a guardian to consent to contraception, given that it was difficult to arrange this even for an involuntary patient in hospital.

Findings

62 In respect of the question of capacity, I find that the represented person has a mental illness, which she does not accept but which I conclude, based on the professional reports before me, impairs her capacity to deal capably with all aspects of her life, and so I find that she is a person for whom a guardian and an administrator can be appointed.

63 In respect of an administration order, I accept the submission of the Public Advocate that the deductions from the represented person's pension for direct payment of her rent and her utility bills represents a less restrictive alternative for the payment of these accounts. I also accept the submission that she may be at risk if she does not have ready access to money.

64 However, the evidence of the applicant is that the represented person spends all her pension within a couple of days of receiving it on drugs and then has no money for her essential needs. The report of the psychiatrist refers to the link between the psychosis experienced by the represented person and her use of illicit drugs.

65 The represented person needs an administrator to regulate the money to which she has access and to pay for essential services such as the house and yard clean-up in an effort to preserve her tenancy with the Department of Housing and Works, and so that it is applied to her food and housing needs. I accept the need identified by the applicant to preserve her tenancy as a critical one to the represented person's ability to continue to live in the community as is her wish.

66 The represented person also needs the restriction of her income from the purchase of illicit drugs. I acknowledge that the restriction of the income of the represented person may not operate to limit her access to

(Page 16)

illicit drugs, given that she has reportedly prostituted herself to obtain drugs in the past. Despite this, if some control of her expenditure can be imposed along with the engagement of services such as assistance with food shopping as proposed by the applicant, this may have the effect of at least meeting some of her nutritional needs.

67 As there is no-one available or willing to be appointed within the family or within the community of the represented person, there is no alternative to the appointment of the Public Trustee as her administrator.

68 The functions of the plenary administrator will include the maintenance of her pension income through compliance with Centrelink requirements, which the represented person has been unwilling to do because of her refusal to accept that she has a mental illness, and for the payment for services to assist her to live in the community, if this is possible and appropriate.

69 In respect of the guardianship application, I accept the applicant's evidence that the represented person has numerous unmet needs, including the most basic such as nutrition, medical care and physical safety and that she is vulnerable to physical harm and sexual exploitation and at risk of further deterioration in her physical and mental health.

70 The needs of the represented person were identified in the application, in the reports before the Tribunal, and in the course of the hearing, to include: accommodation issues not limited to the immediate risk of eviction but ultimately where she should live; her need for services and someone with lawful authority to consent to those services on her behalf; her need for medical examination, treatment and contraception and for someone with lawful authority to consent on her behalf, and that she is a respondent in proceedings for wardship of her child but is unable, due to her mental illness, to participate in those proceedings or in any negotiations with DCD.

71 In respect of the need for a guardian and whether there are less restrictive mechanisms by which the needs of the represented person can be met, I do not accept the submission of the Public Advocate that the MH Act is a less restrictive means by which those needs can be met.

72 In particular, the evidence in this case does not support the submission that the accommodation and medical treatment needs of the represented person can be met through the provisions of the MH Act.

(Page 17)

73 In dealing with this submission, I accept that the represented person is an involuntary patient under the MH Act and is currently treated pursuant to a CTO.

74 Whether a patient fulfils the criteria in s 26 of the MH Act is a question for the relevant psychiatrist from time to time. The role of the psychiatrist is to set the terms of any CTO and to supervise its implementation. Whether a CTO is breached and the represented person is returned to hospital is also a matter for the psychiatrist in applying the relevant provisions of the MH Act.

75 It is difficult to accept the proposition put by the Public Advocate, that the breach of the CTO and the forced return of the represented person to Graylands represents a less restrictive alternative under the GA Act by which her needs can be met, such that a guardianship order should not be made in this case.

76 The evidence of the applicant in respect of the represented person's status under the MH Act is that the represented person has been subject of a CTO almost continuously since 2002, other than at times when she has been hospitalised involuntarily, or at times, as described by the applicant, when there was no psychiatrist available to supervise her on a CTO.

77 I accept the submission that it may be possible for a psychiatrist to specify in the terms of the CTO "where and when treatment should occur" pursuant to s 68(1)(b)(1) of the MH Act. As noted above, this is a matter for the psychiatrist setting the terms of the CTO.

78 How treatment under the MH Act is delivered to the represented person is a question in the first instance for those exercising authority in respect of the represented person under that Act. If the Public Advocate, as guardian of the represented person, has a contrary view in respect of the CTO and the way in which its terms may be drawn to better address the needs of the represented person, it is open to her to address this in the appropriate forum, either with the treating psychiatrist, the Chief Psychiatrist, before the Mental Health Review Board, or in the Court.

79 In the case of the represented person, the current CTO was renewed on 31 May 2006 and includes a term that the represented person receive depot medication and visits from mental health workers. It does not include any term specifying where treatment will be given to the represented person. Although, according to the applicant, such a term

(Page 18)

may be included in any future CTO, or the existing CTO may be varied by the psychiatrist, that is not the current position.

80 Even if a CTO did include a term specifying where treatment will be given, it is questionable whether this is equivalent to the authority of a guardian vested with the function to determine where a person should live. More specifically, the question for the Tribunal is whether, on the facts of this case, such a term, if included in a CTO, would address all the needs of the represented person, which go beyond the location of the treatment of her mental illness.

81 This is illustrated by the example given by the applicant of the refusal by the represented person of an offer of a transfer to accommodation judged to be in her best interests, as it was said to reduce the risk of sexual exploitation. The represented person refused that transfer because she would not sign the necessary form, as it referred to her having a mental illness, which she denies she has. Section 50 of the GA Act provides that a guardian with authority to decide where the represented person should live could sign such a document on her behalf, and it would have legal effect as though she had signed it herself.

82 The issues of accommodation include decisions about whether, in her current circumstances, the represented person is able to live safely in the community, or whether some other form of accommodation is appropriate. If she's not evicted from her tenancy, a decision will need to be made about any future offer of a transfer to alternate accommodation. In relation to the eviction action, there needs to be a guardian ad litem to defend that action if it is judged to be in the represented person's best interests.

83 The guardian vested with the authority to decide where a person is to live exercises a choice, if that is able to be exercised, on her behalf in her best interests as to where she should live. The factors in s 51 of the GA Act, which elaborate the obligation on the guardian to act in the best interests of the represented person, will be considered by the guardian when exercising that choice and go beyond the treatment and management of the represented person's mental illness. Despite what presently appears to be the pervasiveness of the effects of her illness on all aspect of her life, the represented person's living situation cannot be reduced simply to the treatment of her illness.

84 Furthermore, in respect of the meaning of s 68(1)(b)(1) of the MH Act where a term of a CTO specifies where and when treatment can be

(Page 19)

given this could be construed as being directly and narrowly related to the location of treatment rather than given a wider meaning of determining the place of residence of that patient.

85 The narrower construction of s 68(1)(b)(1) of the MH Act is supported by the observation of Scott J in MM and the Mental Health Review Board (Unreported; Supreme Court; Library No 990093; 4 March 1999) he notes the "principle underlying construction of legislation which interferes with the liberty of the subject" and refers to Deane J in Donaldson v Broomby (1982) 40 ALR 525, which involved wrongful arrest and states:

"For the purposes of this case, the same approach to construction should be adopted as the appellant is in custody in a very real sense and is deprived of her liberty in almost the same way and nearly to the same extent as a person arrested by a police officer. It follows that the provisions of the Mental Health Act should be strictly complied with before the detention or continued detention of an involuntary patient is permitted."

86 This approach to the construction of the MH Act was adopted in relation to CTOs in the construction of s 68 of the MH Act in EO v MHRB[2000] WASC 203 per Templeman J. His Honour said, in that case, that "although that section does not itself result in the detention or continued detention of an involuntary patient, it is a provision which may lead to that result".

87 To attempt to widen the scope of the provision from the language of the section to a wider application and, in effect, to attempt to determine the living situation of a patient may not be consistent with the scheme of the MH Act and the obligation to construe its provisions narrowly. This is a question for others to determine.

88 In relation to the needs of the represented person regarding medical treatment and the submission of the Public Advocate that the provisions of the MH Act provides a less restrictive alternative to the appointment of a guardian for the purposes of consent to treatment, again the evidence does not support the submission that the provisions of the MH Act meet the needs of the represented person in her current situation.

89 Although the Chief Psychiatrist can consent to medical treatment for an involuntary patient in authorised hospital tests under s110 of the MH Act, the represented person is not presently in an authorised hospital,

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having been discharged from hospital earlier this year, and so this provision cannot apply to her in her present circumstances.

90 Furthermore, when she was an inpatient at Graylands earlier this year, she refused medical tests, and, it appears that the Chief Psychiatrist did not exercise his authority under s110. The represented person's refusal appears likely to be the primary reason that the necessary tests and monitoring of her health were not undertaken.

91 According to the applicant, it is necessary that the represented person's health be monitored. I accept that it is in her best interests that she have the tests and examinations to which the applicant refers, despite this being against her expressed wishes. If the represented person is readmitted to hospital, and I accept that she has had admissions to Graylands in the past five years, at any time in the future when those tests can be given and treatment could be provided to her, a guardian could consent to the tests and the treatment.

92 Although it is not necessary to go further on the facts of this case, I note that s 110 of the MH Act has been considered in decisions of the former Guardianship and Administration Board: see for example Re MC [2004] WAGAB 5, Re LGW [2004] WAGAB 4, and more recently by the Tribunal in AB[2005] WASAT 303, DON[2005] WASAT 193.

93 In Re MC, the case which fully examined the operation of s 110, the Full Board of the Guardianship and Administration Board (Full Board) received a number of submissions regarding the operation of the section and stated the following, at paragraph 35:

"We note that the submissions cover a number of areas that go beyond those necessary for this Board to decide but there is common ground on the following relevant points:

(1) The section does not authorise treatment in circumstances where a patient is capable of consenting to treatment. It is not intended to derogate from the patient's common law rights or to override the ordinary requirement of informed consent.

(2) The section is intended to provide a mechanism for the Chief Psychiatrist to authorise treatment where a patient is not capable of consenting to treatment.

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(3) The section expressly preserves the position of a legal guardian to consent to treatment.

(4) The Chief Psychiatrist cannot exercise his or her power to approve medical treatment for an incapable person where a guardian has been appointed and is available.

We accept these submissions. We consider that it is plain that the authority of the Chief Psychiatrist under s 110, whatever its boundaries, is not intended to override the authority of a guardian. We also consider that it is more appropriate for an independent guardian to give consent to medical treatment than for that authority to be exercised by the Chief Psychiatrist. Thus, it is clear in our view that the existence of the authority of the Chief Psychiatrist does not preclude the Board from finding that a person is in need of a guardian within the meaning of s 43(1)(c). Indeed, we consider that the authority of the Chief Psychiatrist is in fact a default provision to be used where there is no one else with legal authority to consent for persons who are incapable of giving consent for themselves."

94 I concur with the view as set out above that the authority of the Chief Psychiatrist in s 110 is a "default position", and so even where an involuntary patient is an inpatient in an approved hospital, this does not preclude the finding that a person may be in need of a guardian and the making of a guardianship order for that person.

95 In relation to contraception, the Public Advocate accepts that contraception is not medical treatment under s 110 of the MH Act, but submitted that, even where guardians have authority to consent to contraception, this is difficult to effect, even when the patient is in Graylands.

96 I accept this to be the case. The unwillingness of the represented person to have medical treatment, to accept services, to accept a transfer to more suitable accommodation, and to engage with existing services, presents great difficulties for those responsible for delivering those services to her.

97 This can be seen in the efforts made by the applicant and Mr Dick, as they have attempted to assist her and coerce her and cajole her into accepting their services in the interests of her mental health.

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98 I do not minimise the difficulty faced by all of those who are charged with the responsibility of addressing the needs of the represented person, but this issue, identified as the "workability" of the order, is not relevant to the question whether the test, under s 43(1)(c) of the GA Act, has been met. That is, whether the represented person is in need of a guardian.

99 In the case NCK [2004] WAGB 6, the Full Board said that:

"The argument that the strict terms of the order may not be capable of enforcement" - in that case in another country - "is not to the point. Whether a person is in need of a guardian is the ultimate touchstone in relation to which the Board must decide that order should be made."

100 The question for the Tribunal is whether the represented person is in need of a guardian, and I find that she is such a person.

101 In addition, whether an order is workable, or whether a function that is vested in a guardian is able to be given effect to, is not a static condition, but one that might change over time.

102 Since there is no other person suitable or willing to be appointed, the Public Advocate is appointed as guardian.

103 I consider a plenary order should be made in this case. A limited order simply including the functions that I have identified would not, in my view, be sufficient to meet the needs of the represented person.

104 I consider that the Public Advocate should have plenary powers so that she has the authority to advocate and make representations to the Chief Psychiatrist and other service providers or elsewhere on behalf of the represented person, or to take any other action she considers appropriate to advance the interests of the represented person.

Orders

1. The Public Advocate is appointed as plenary guardian.

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.

3. The order is to be reviewed by the 13 June 2007.

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4. The Public Trustee is appointed the represented person's plenary administrator, with review of that order by 13 June 2007.

I certify that this and the preceding [104] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MS F CHILD, MEMBER