RJC
[2006] WASAT 279
•12 SEPTEMBER 2006
RJC [2006] WASAT 279
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 279 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:790/2006 | 20 AND 21 JUNE 2006 | |
| Coram: | MS F CHILD (MEMBER) | 12/09/06 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Public Advocate appointed limited guardian | ||
| B | |||
| PDF Version |
| Parties: | RJC |
Catchwords: | Guardianship and administration – Psychiatric illness – Patient discharged from involuntary status under the Mental Health Act 1996 but detained in hospital – Need for a guardian to decide accommodation and services and to consent to medical treatment – Appointment of the Public Advocate as guardian no other person suitable or willing |
Legislation: | Criminal Law (Mentally Impaired Defendant's Act 1996 (WA) Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 43(1)(c), s 44(5), s 45, s 119, s 119(3), s 119(3a), s 119(3)(d), Part 5 Div 3 Mental Health Act 1996 (WA), s 26, s 26(1)(b), s 26(1)(b)(i), s 26(1)(c), s 26(1)(d), s 58, s 58(1)(c), s 59, s 110, s 169 State Administrative Tribunal Act 2004 (WA), s 78 |
Case References: | AB [2005] WASAT 303 BTO [2004] WAGAB 2 DON [2005] WASAT 193 KD [2005] WASAT 248 MW [2005] WASAT 205 Re BCB; Application for Guardianship Order (2002) SR (WA) 338 Re LGW [2004] WAGAB 4 Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : RJC [2006] WASAT 279 MEMBER : MS F CHILD (MEMBER) HEARD : 20 AND 21 JUNE 2006 DELIVERED : 12 SEPTEMBER 2006 FILE NO/S : GAA 790 of 2006 BETWEEN : RJC
- Represented Person
Catchwords:
Guardianship and administration – Psychiatric illness – Patient discharged from involuntary status under the Mental Health Act 1996 but detained in hospital – Need for a guardian to decide accommodation and services and to consent to medical treatment – Appointment of the Public Advocate as guardian no other person suitable or willing
Legislation:
Criminal Law (Mentally Impaired Defendant's Act 1996 (WA)
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 43(1)(c), s 44(5), s 45, s 119, s 119(3), s 119(3a), s 119(3)(d), Part 5 Div 3
Mental Health Act 1996 (WA), s 26, s 26(1)(b), s 26(1)(b)(i), s 26(1)(c), s 26(1)(d), s 58, s 58(1)(c), s 59, s 110, s 169
State Administrative Tribunal Act 2004 (WA), s 78
(Page 2)
Result:
Public Advocate appointed limited guardian
Category: B
Representation:
Counsel:
Represented Person : No appearance
Solicitors:
Represented Person : No appearance
Case(s) referred to in decision(s):
AB [2005] WASAT 303
BTO [2004] WAGAB 2
DON [2005] WASAT 193
KD [2005] WASAT 248
MW [2005] WASAT 205
Re BCB; Application for Guardianship Order (2002) SR (WA) 338
Re LGW [2004] WAGAB 4
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The State Administrative Tribunal appointed the Public Advocate as the guardian of a man with a long-term mental illness, who at the time of the appointment was a patient at Selby Lodge, an approved hospital under the Mental Health Act 1996 (WA).
2 At the time of the appointment, the patient had been discharged from involuntary status under the Mental Health Act 1996 but was effectively detained in hospital.
3 The psychiatric evidence before the Tribunal indicated that the patient was not capable of making judgments in matters relating to his person and was therefore a person for whom a guardianship order could be made.
4 As there was no one with lawful authority empowered to make decisions for him in relation to his treatment and care, and the contact he had with other persons, a guardian was appointed with these functions.
5 The Tribunal also considered that there was a need for a guardian to act on behalf of the patient in the planning for his future accommodation and care so that he could return to live in the community on his discharge from hospital. There was also a need for a guardian with the relevant authority to liaise with the Public Trustee, his appointed administrator, so that the discharge plan could include decisions about expenditure from his estate on any accommodation plan developed.
Background
6 An application for the appointment for a guardian for RJC (the represented person) was filed with the Tribunal on 1 May 2006 by a social worker from Selby Lodge (Selby), a secure psychiatric facility.
7 The application was heard on 20 June 2006. The represented person did not attend the hearing on advice from the medical officer at Selby Lodge. The applicant was substituted at the hearing by representatives of the treating team from Selby including, Mr Steven Downs, social welfare officer; Ms Deborah Grant, clinical psychologist; Ms Claire Harris, clinical psychologist trainee and Mr Adam Gardner, mental health nurse. The Public Advocate was represented by Ms Nola Bradshaw, an investigator with the Office of the Public Advocate (the
(Page 4)
- Public Advocate). The sister of the represented person, ET, attended the hearing, his other sister, HC, also attended for part of the hearing.
8 Following the hearing of the evidence, the hearing was adjourned to the following day and oral reasons were delivered for the decision of the Tribunal to appoint a guardian.
9 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
10 The legislation relevant to the applications is the Guardianship and Administration Act 1990 (WA) (the GA Act)
11 Before a guardian can be appointed under s 43 of the GA Act, the Tribunal must be satisfied that the represented person has attained the age of 18 years, is incapable of looking after his own health and safety, is unable to make reasonable judgments in respect of matters relating to his person or is in need of oversight care or control in the interests of his own health and safety or for the protection of others. Section 43(1)(c) of the GA Act provides that there must be a need for a guardian before one is appointed.
12 In determining this application, and when performing any function under the GA Act, the Tribunal must observe the principles set out in s 4 of the GA Act. Those principles include the presumption of capacity of persons for whom an application is made, the obligations on the Tribunal not make an order if the needs of a proposed represented person can be met in a less restrictive way and to limit the intrusion in the life of the represented person and to ascertain the wishes of that person.
13 In determining the appropriate appointment of a guardian, s 44(5) of the GA Act is relevant in 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.
14 The represented person, until his discharge from involuntary status, was treated in Selby Lodge (Selby) and Graylands Hospital pursuant to provisions of the Mental Health Act 1996 (WA) (MH Act).
15 The MH Act authorises the involuntary treatment of persons who meet the requirements of s 26 of the MH Act.
(Page 5)
16 Section 26 provides:
"(1) A person should be an involuntary patient only if —
(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 —
(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 —
(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 6)
17 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.
(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
Capacity
18 The material before the Tribunal in support of the application includes reports from Dr Joseph Lee, psychiatrist, Dr Jones, medical officer and clinical psychologist, Ms Debbie Grant.
19 The report of Dr Lee states that the represented person has a diagnosis of chronic schizophrenia. It notes that he had been a patient at Graylands Hospital from April 2003 until his transfer to Selby Lodge in December 2005. Dr Lee considers that the represented person is incapable in relation to his living situation, his personal health care and in relation to his financial affairs. The report of Dr Jones supports this view.
20 The report of Ms Grant refers to a psychological assessment of the represented person which confirms that he is very impaired in his functioning and finds it stressful to be asked to make decisions. Ms Grant's report notes that the represented person requires prompting for activities of daily living and supervision. He can be non-compliant with his diabetic diet and he has a limited ability to absorb and process information. Ms Grant notes that hostel trials and independent living have failed in the past due to the represented person's "florid psychosis, agitation and non-compliance with medication".
21 Mr Adam Gardner, mental health nurse, who works directly with the represented person at Selby, reported in the hearing that the represented
(Page 7)
- person is "floridly psychotic" and that his mental state fluctuates and that his medications have been adjusted recently to reduce the auditory hallucinations and paranoid feelings experienced by the represented person. Mr Gardner considers that rehabilitation of the represented person to enable a trial of living in the community may take up to two years.
Need
22 The need for guardian identified in the application is the need for a guardian to be involved in discharge planning for the represented person and development of an option for his accommodation following his discharge from Selby.
23 In the course of the hearing, Mr Gardner confirmed that the represented person had been discharged from involuntary status under the MH Act on 10 May 2006. Mr Gardner reported that Dr Lee had discharged the represented person from involuntary status as he was not making any attempt to leave Selby and he considered that he could be made a voluntary patient.
24 Mr Gardner stated during the hearing that the duty of care owed by staff to the represented person meant that should he attempt to leave Selby, he would be stopped, and if he did leave, this would be reported to the police and he would be brought back.
25 In relation to the issue of discharge planning, Mr Downs noted that the represented person is currently in a "slow stream rehabilitation ward" and would not be easily placed in the community. He stated that the psychiatrist and the other members of the treating team considered that it was appropriate to start looking at placement options as soon as possible, as problems had been experienced in the past with the placement of the represented person in accommodation and costing of any option had to be considered. Mr Downs noted that the treating team had had difficulty in identifying who it could negotiate with to develop placement options as there were differing views between the family and the friend of the represented person as to what was appropriate.
26 He stated that in the past, the represented person had exhibited aggressive behaviours and this had been a problem on his admission to Graylands. Mr Gardner noted that these behaviours were now managed with the use of medication and that there had been no incidents of aggression while the represented person had been a patient at Selby.
(Page 8)
27 Another matter raised was the difficulty experienced when the represented person had gone on outings from Selby with his former carer and friend. It appears that his diabetic diet requirements had not been followed and his health had deteriorated. In response to this, Dr Lee had restricted contact with the friend of the represented person so that he was not now able to leave Selby to go on outings with her, but could receive visits and telephone calls. The letter of the friend submitted at the hearing provides a background to the role she played in the life of the represented person and it is accepted that she continues to be a significant person in his life.
28 The sisters of the represented person expressed concerns about the behaviours exhibited in the past by the represented person, which had resulted in criminal charges against him and the impact that this had had on the family over many years. The elder sister, ET, spoke during the hearing about the anguish experienced by the family of the represented person over many years because of the effects of his mental illness and expressed the view that she did not want to take on the role of decision-maker.
29 ET sought to clarify the roles played by an appointed guardian, Mental Health Services and the Public Trustee in the life of the represented person. Her evidence was that she had not spoken to the represented person for a long time. She expressed the view that the family had not been consulted appropriately by those involved and too great a reliance was placed on the input of the friend who was the represented person's former housekeeper and carer without reference to the views of family members or to the background of the represented person.
Public Advocate's submissions
30 The Public Advocate's view was that there was a need for a guardian for the represented person but that the appointment of a guardian while the represented person was in hospital was premature. It was submitted that there would not be a need for a guardian until discharge was imminent.
31 It was submitted that the treating team would make medical decisions for the represented person.
32 It was also submitted that there was no need for someone acting independently of Mental Health Services in relation to the development of
(Page 9)
- an accommodation option for the represented person on his discharge from Selby.
Findings
33 Based on the reports of Dr Lee, Ms Grant, Dr Jones and the evidence of Mr Gardner, I find that the represented person is a person for whom a guardianship order can be made. Specifically, that he is incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person and is in need of oversight care and control in the interest of his own health and safety, or for the protection of others.
34 In relation to the need for a guardian, the application identified the need for a guardian to be involved in discharge planning, but in the course of the hearing, the information that the represented person had been discharged from involuntary status raised the question of whether there is a need for a guardian with lawful authority to consent to treatment and care of the represented person, and to determine the contact he has with others.
35 In respect of the status of the represented person under the MH Act; the evidence of Mr Gardner, that the represented person is "floridly psychotic" is perhaps not consistent with the decision to discharge him from involuntary status.
36 Dr Lee's report, referred to above, states that the represented person is not capable of consenting to medical treatment. It is arguable that in these circumstances he meets the requirements of s 26(1)(c) of the MH Act for treatment as an involuntary patient.
37 The duty of care owed by the staff at Selby to the represented person, referred to by Mr Gardner in his evidence, is presumably said to arise because the represented person is a patient and is considered to require treatment and to be at risk should he leave Selby. Again, it is arguable that in these circumstances he meets the provisions of s 26(1)(b)(i) and s 26(1)(d)of the MH Act for involuntary treatment.
38 Having said this, the question of the status of the represented person under the MH Act is a matter for determination, in the first instance, by the psychiatrist treating the represented person.
39 The evidence that the represented person has been discharged from involuntary status, but that should he attempt to leave Selby he would be
(Page 10)
- reported as a missing person and brought back by the police, leads to the conclusion that he is effectively detained without lawful authority.
40 It is not clear whether the represented person understands that his status is that of a voluntary patient.
41 In relation to the need for a guardian, I do not accept the Public Advocate's submission that decisions about medical treatment of the represented person can be made by the treating team. The duty of care owed to the represented person cannot be said to authorise the treatment of his diabetes, his continuing psychiatric treatment and detention, and the limitation placed by Dr Lee on contact with his friend.
42 In particular, while it seems that the represented person acquiesces to his treatment, given the evidence of his incapacity he cannot consent to that treatment.
43 The question of medical consent for persons incapable of giving consent has been the subject of previous decisions of the Full Board of the Guardianship and Administration Board and since that jurisdiction was absorbed by the State Administrative Tribunal, by the Tribunal.
44 The Full Board observed in the decision Re BCB; Application for Guardianship Order (2002) SR (WA) 338 that consent to medical treatment was required by a patient or by someone lawfully exercising authority on the patients' behalf and that the authority to consent could not be transferred to health care providers.
45 This view was affirmed in BTO[2004] WAGAB 2, and followed in later decisions of the Tribunal, for example MW [2005] WASAT 205; KD[2005] WASAT 248; and more recently, AB[2005] WASAT 303; DON[2005] WASAT 193.
46 The MH Act does provide for the medical treatment of patients where consent is given in writing by the Chief Psychiatrist in circumstances where the patient is an involuntary patient (s 110 MH Act). However, as the represented person is not an involuntary patient this does not apply to him.
47 In respect of this case, in the absence of an order for his involuntary treatment, there is a legal vacuum to authorise or to consent to treatment of the represented person.
(Page 11)
48 In MW, noted above, I stated that I considered that "treatment" as defined in s 3 of the GA Act was wide enough to include psychiatric treatment of the represented person. I consider that remains the position in relation to this present case.
49 The operation of s 119 of the GA Act to provide for consent to treatment was not canvassed in the hearing but it is unlikely to provide a less restrictive alternative given that his sister, ET, who is first in the order under s 119(3) (at s 119(3)(d)), although expressing concern for his welfare during the hearing, has not had frequent personal contact with the represented person to meet the requirements required in (s 119(3a)).
50 In respect of the authority to make other personal decisions for the represented person, the relevant provisions of the MH Act would not appear to apply to the represented person as he has been discharged from involuntary status. For example, the MH Act provides for the detention of an involuntary patient (s 26(1)(b) MH Act) and the apprehension and return of an "absconding patient" (s 58 MH Act), by the police if necessary (s 58(1)(c) MH Act).
51 Section 169 of the MH Act establishes a regime by which a psychiatrist may restrict access to telephone calls, parcels and visitors for patients in an authorised hospital whatever the status of the patient. Restriction on leaving the hospital, as has apparently been applied to the represented person, appears to be limited under the MH Act to involuntary patients. Leave may be granted under s 59 to involuntary patients to leave the hospital at the discretion of the psychiatrist.
52 Given that decisions are being made for the represented person without formal authority it is appropriate that a guardian be appointed with lawful authority in respect of these matters.
53 The Public Advocate did not take issue with the need for a guardian to be appointed, but with the timing of that appointment. As set out above, the Tribunal does not accept the submission of the Public Advocate that a guardian is not required for the represented person until his discharge from hospital.
54 Even if there were no legal vacuum in respect of decision making for the represented person, while he is an inpatient, regarding his treatment and the other personal matters referred to above, there is a role for a guardian to play in the development of the plans for the accommodation and care of the represented person on his discharge from hospital.
(Page 12)
55 The development of the accommodation option for the represented person should include a guardian who can speak with legal authority on behalf of the represented person to Mental Health Services, to the Public Trustee and to any other relevant service providers or persons in the development of that option.
56 There is a need for a formal authority because the represented person cannot act in relation to these matters on his own behalf and it appears that there is no one able to play that role informally.
57 Although it is the submission of the Public Advocate, the role of a guardian under the GA Act is not limited to decision-making. The provision of the of the GA Act setting out the authority of a guardian, s 45of the GA Act was examined in the decision of the Full Board of the Guardianship and Administration Board, now reported as Re LGW [2004] WAGAB 4. There is no need to repeat that detailed discussion here. It is sufficient to say that a guardian's role was considered not to be limited to "authoritative decision making" but included a wider role even where the final decision in relation to personal decisions of a represented person are in the hands of another authority. In that case the represented person was subject to the Criminal Law (Mentally Impaired Defendant's) Act 1996 (WA) and so decisions about her accommodation and care were not within the authority of a guardian but were ultimately a matter for the Governor on recommendation of the Mentally Impaired Defendant's Review Board. The Full Board considered there was a role for a guardian to play in making representations on behalf of the represented person in relation to decisions which might ultimately be made for her.
58 In contrast, in this case it appears that there is no one exercising lawful authority to determine these questions for the represented person and so a guardian is needed. It may also be the case that the represented person requires advocacy and representations to be made on his behalf in relation to his present circumstances.
59 The formal authority vested in a guardian to determine the living arrangements of the represented person will be particularly important in liaison with the Public Trustee, the appointed administrator.
Suitable appointment
60 In respect of who should be appointed guardian, it was said during the hearing by Mr Downs, that here had been a conflict in the past between the family and the friend of the represented person and that there was currently doubt within the treating team as to who was best placed to
(Page 13)
- speak on his behalf. In the view of the treating team, an independent guardian is needed.
61 This view is also supported by the friend and former carer of the represented person in her letter to the Tribunal and in her reported discussions with the staff of the Office of the Public Advocate.
62 The sisters stated in the hearing that the situation of their brother required co-ordination and oversight by someone familiar with his situation. One sister referred to the need for a "Solomon", which I take to mean an independent, informed decision-maker. The sisters did not seek appointment themselves and ET expressed some reservation about what might be achieved by a guardian, but did not oppose the appointment of the Public Advocate as guardian.
63 The Public Advocate submitted that if a guardian were to be appointed that it should be the Public Advocate as it was considered that there was no-one else who was suitable and willing to be appointed. I accept this to be the position and therefore appoint the Public Advocate as limited guardian of the represented person.
64 Because of the persistent nature of the represented person's illness as documented in the reports and the need for someone to represent his best interests in the longer term, a five year order is appropriate.
Orders
65 On an application for the appointment of a guardian for the represented person it is ordered that:
1. The Public Advocate 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;
(d) To determine what contact, if any, the represented person should have with others and the extent of that contact;
- (e) To determine the services to which the represented person should have access; and
(f) To consent to the use of chemical or physical restraint in respect of the represented person and to decide matters incidental thereto.
- 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. This order is to be reviewed by 21 June 2011.
- I certify that this and the preceding [65] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER