SJ and Met - [2006] WASAT 210

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: SJ and MET [2006] WASAT 210

MEMBER: MS F CHILD (MEMBER)
MR J MANSVELD (MEMBER)
MR S JONGENELIS (SENIOR SESSIONAL MEMBER)

HEARD: 5 MAY 2006

DELIVERED : 28 JULY 2006

FILE NO/S: GAA 754 of 2006

BETWEEN: SJ
Applicant
AND
MET
Represented Person

Catchwords:

Guardianship and administration - Medical treatment of patient with intellectual disability - Section 119 of Guardianship and Administration Act 1990 (WA) for consent to treatment not operating effectively as a less restrictive alternative - Whether restraint forms part of treatment - Parents appointed limited guardians

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 43, s 44(5), s 119

State Administrative Tribunal Act 2004 (WA), s 78

Result:

Limited guardians appointed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Represented Person : Self-represented

Solicitors:

Applicant: Self-represented
Represented Person : Self-represented

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

Re BCB; Application for Guardianship Order (2002) 28 SR (WA) 338

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

The State Administrative Tribunal appointed the parents as limited guardians of a 19 year old young woman with an intellectual disability and severe behavioural disturbances.
The young woman was a patient in hospital but refusing treatment for life threatening but treatable medical conditions. The treating team at the hospital brought the application to the Tribunal proposing to cease active treatment and treat the young woman palliatively due to the distress which may be caused by the treatment and her resulting aggression.
The parents did not support palliative treatment and proposed that she be actively treated for her conditions.
Although her parents had authority, as her nearest relatives, to consent to medical treatment on her behalf under s 119 of the Guardianship and Administration Act 1990 (WA) the Tribunal decided to formally appoint them as guardians. The Tribunal concluded that formal authority to decide treatment was needed as the extent of the young woman's cognitive impairment had not been appreciated by the hospital staff in responding to her challenging behaviours or to her lack of compliance with treatment and consequently the role of her parents to give consent to treatment informally had not been recognised.
The parents were also given authority to consent to physical or chemical restraint of the young woman, if necessary so that treatment could be provided to her. The restraint was not part of the treatment as defined in the GA Act but might be necessary to give effect to the treatment. The Tribunal determined that there was a need for the issue of restraint to be dealt with transparently in the best interest of the young woman.

Introduction

These reasons relate to an application for the appointment of a guardian for MET (the represented person) heard on 5 May 2006 before the State Administrative Tribunal (the Tribunal) at which an order was made appointing her parents limited guardians for a period of 12 months.
Oral reasons for the decision were delivered at the conclusion of the hearing of the application, and these written reasons are produced at the request of the Public Advocate pursuant to s 78 of the State Administrative Tribunal Act 2004 (WA).

The application

The application for the appointment of a guardian for the represented person was made by Ms Susan Jenner (applicant), a social worker from Royal Perth Hospital (RPH). The application refers to the represented person as currently being an inpatient at RPH under the Plastics Surgery team. It notes that she is non‑compliant with the treatment plan for the ulcer on her right buttock. The ulcer, without treatment, is life threatening, and she also wishes to discharge herself with no plan as to where to go or who to assist with her activities of daily living. The application goes on to say "[the represented person] needs a legal framework, that is a guardian, to make decisions for the treatment of her ulcer and ensure her care needs are met following discharge".
The hearing of the application was held at the Tribunal, and together with the applicant; Dr Nigel Armstrong, psychiatrist; Mr David Thomson‑Harry, Manager of Client Services at Mosaic Community Care Inc (Mosaic) and representatives of the Public Advocate, attended the hearing in person. The parents of the represented person attended by video link from the country town in which they live, and Dr James Savundra, consultant plastic surgeon, attended the hearing by telephone.
The represented person did not attend the hearing. The Public Advocate's representative reported in a written report submitted to the Tribunal and during the hearing on an interview with the represented person conducted in her hospital room.

Legislation

The legislation relevant to the application is the Guardianship and Administration Act 1990 (WA) (the GA Act).
When dealing with an application for guardianship, the Tribunal must be satisfied that the represented person is a person for whom a guardianship order can be made.
Before a guardian can be appointed, the Tribunal must be satisfied that the represented person has attained the age of 18 years, is incapable of looking after her own health and safety, is unable to make reasonable judgments in respect of matters relating to her person or is in need of oversight care or control in the interests of her own health and safety or for the protection of others and is in need of a guardian.
Section 43 of the GA Act for the appointment of a guardian is 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;
(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."
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.

Evidence and material before the Tribunal

In respect to the question of capacity, which is the threshold question in respect to the making of a guardianship order, the following material was before the Tribunal:
•A report from Dr Nigel Armstrong, dated 24 April 2006, which refers to the represented person as having an intellectual impairment. Dr Armstrong considers the represented person incapable for the purposes of decision‑making in the spheres of personal health and living situation. He described her condition as "static".
•A report from Dr James Savundra, consultant plastic surgeon, which states that he considers the represented person incapable of making decisions in the spheres regarding her personal health care and living situation. He notes that she has poor insight and understanding in relation to treatment proposals and into her personal health care matters.
•A report from Ms Carol Smith, clinical psychologist, dated 10 June 2004. This report apparently followed psychometric testing of the represented person and states "[the represented person] is experiencing quite marked intellectual deficit. This is somewhat surprising given her presentation and her ability to interact socially … It will be important for people that are involved in [the represented person]'s care to be aware of her extremely low intellectual level, particularly as she presents with much higher IQ, as this has significant implications in terms [of] guiding interactions with her".
•A report from the applicant in which she notes that the represented person is well supported by family and carers from Mosaic but notes that she "has an intellectual impairment and is unable to factor in the implication of her actions". She reports that the represented person is "angry, scared and overwhelmed and lashes out verbally and physically to staff and family" and is "unable to make reasoned or informed decisions".
•A further submission from the applicant was received on 3 May 2006 in which she reports on a case conference which occurred at RPH, on 2 May 2006, and confirms the medical situation of the represented person as the following: paraplegia scoliosis, Type 2 diabetes, sleep apnoea, obesity and pressure ulcer on the right buttock. The report notes that the represented person has an intellectual impairment, and "is picking at her wounds and creating new sores and has expressed suicidal thoughts". The treatment proposed is "massive weight loss either through wiring her jaws or stomach stapling and feeding a liquid diet under medical supervision". The report notes that the treating team considers this "too cruel to be imposed on her". Therefore, the recommended treatment is "palliative care program to be introduced". It notes that the role of a guardian would be to make an informed decision that is in her best interests in light of the above situation.
A report from the Public Advocate to the Tribunal, dated 4 May 2006, following an interview with the represented person in her hospital room the days before the hearing, which stated in part; that the represented person would like to make her own decisions but would be happy for her parents to make medical decisions for her and the only people she wanted involved in making decisions on her behalf are her parents.
In the hearing, the applicant referred to non‑compliance of the represented person with her treatment. The applicant reported that the represented person had been admitted to RPH on 3 March 2006 and had been variously angry, aggressive and violent, sometimes turning the violence towards herself. She had attempted to pull out an intravenous antibiotic drip. She had refused to lie on her side and, when placed on her side, rolled herself onto her back which was exacerbating the ulcer.
The applicant noted that restraint of the represented person had been considered but that she, the applicant, had great concerns about this, as to tie the represented person's hands would be to "totally paralyse her".
Dr Armstrong stated that he considered that all of the conditions experienced by the represented person to be treatable were she to be compliant with treatment. In the course of the hearing, the applicant and the doctors confirmed that during her admission medications had been used to settle the behaviour of the represented person to allow her to sleep and that a 24 hour guard had been placed on her door to prevent her discharging herself against medical advice.
Mr Thomson‑Harry submitted at the hearing that, prior to her admission in March 2006, the represented person had been living in supported accommodation with staff to prepare her meals and transfer her to the toilet. She had been attending TAFE and developing an independent lifestyle. He noted that the pressure sore which she had suffered for some period had deteriorated, and it was for this reason that she had been admitted to RPH. He stated that the Mosaic staff had found that the represented person was not permanently obstructive about the provision of care and that she would be compliant if she felt that her situation was being respected by the person providing services.
Mr Thomson‑Harry noted that Mosaic had not been invited to attend the recent case conference, despite being the primary service provider to the represented person. He also noted that Mosaic had provided RPH with information regarding the represented person's multiple disabilities but that it appeared that the information had not found its way to the relevant staff members.
The lack of information in respect of the represented person's disabilities is confirmed by Dr Armstrong, who stated that the level of the intellectual disability experienced by the represented person had not been brought to his attention until two days prior to the hearing. He stated that he could not find any documentation in the notes as to the level of her deficits. Given the represented person's level capacity, he considered that a framework by which doctors could receive instructions regarding the represented person's treatment should be established.
There appeared to be a breakdown in communication about the situation of the represented person between her parents and the hospital. Both parents stated in the hearing that they had not met the primary treating doctor. Dr Savundra, confirmed that he had not met the parents in the months that he had treated the represented person, both at RPH and at Shenton Park.
In relation to the need for a guardian the applicant submits that there is a need for a guardian because there is no clearly defined decision‑maker in respect of treatment of the represented person. She stated that once a decision had been made regarding who had authority to make decisions, that the treating team would follow the instructions of the decision‑maker.
She stated that the treating team felt that s 119 of the GA Act had not created sufficient certainty or clarity about who had authority.
Dr Savundra noted that it was not merely decisions about management of the represented person's health care that were required, but enforcing those decisions against the non‑compliance or active refusal of the represented person. He stated he was willing to treat the represented person with the consent of her parents under the authority of s 119 of the GA Act but raised the question of enforcement of decisions made regarding her treatment.
The submission of the Public Advocate was that no guardian was needed, given that the parents had authority to make medical decisions under the authority of s 119 of the GA Act. It was submitted that for treatment of the ulcer and to give effect to that treatment, a treatment plan was needed, which might include restraint to enable treatment to occur. It was not the Public Advocate's submission that s 119 of the GA Act would allow someone to consent to restraint but that if restraint was used in this case that it would form part of the overall treatment plan and could be seen as "treatment" under the GA Act.

Findings

Based on the reports of clinical psychologist, Ms Smith, and the report of psychiatrist, Dr Armstrong, we find that the represented person is a person for whom a guardianship order can be made, in that she is incapable of looking after her own health and safety, is unable to make reasonable judgments in respect of matters relating to her person and is in need of oversight care and control in the interests of her own health and safety or for the protection of others.
She is in need of a guardian because her refusal of treatment is not a capable decision and it appears the authority of her parents to consent to her treatment under s 119 of the GA Act was not recognised. The failure to recognise the parent's authority results from the lack of appreciation of the extent of the disability of the represented person and is consistent with the report of Ms Smith, that the impairment of the represented person is more significant than her presentation suggests. It is apparent that her incapacity to participate in decision‑making about her health care was not recognised by the hospital staff, despite efforts by her parents and by Mosaic to convey the effect of her intellectual disability on both her behaviour and her ability to make decisions about her care. The lack of recognition of the incapacity of the represented person to make decisions about her treatment led to RPH seeing her non‑compliance as a refusal of treatment rather than a manifestation of her distress at being in hospital, or perhaps in a restrictive environment.
We conclude that the less restrictive alternative provided in s 119 of the GA Act has failed to meet the needs of the represented person, both as a means by which consent could be sought in relation to her treatment, and also because it appears that the represented person's needs may include that she be restrained so that the treatment proposed can be delivered to her.
In respect of the need for authority to consent to restraint, the evidence from RPH is that forms of restraint have been used in the course of the represented person's admission there, including a 24‑hour guard on her hospital room to prevent her leaving and the use of Respiridone to manage her behaviour. We do not accept the submission of the Public Advocate that restraint in this case is part of the treatment itself. We consider that it is in the best interests of the represented person that the authority for the imposition of restraint is transparent.
There is support for this view in a decision of the former Guardianship and Administration Board (the Board) which provides guidance to the Tribunal.
The meaning of restraint adopted by the Board in Re BCB; Application for Guardianship Order (2002) 28 SR (WA) 338 included the definitions of physical and chemical restraint found in the report of the Ministerial Task Force (NSW) May 1997 on psychotropic medication used in nursing homes.
The Task Force defined physical restraint as "the intentional restriction of a person's voluntary movement or behaviour by use of a device or physical force for behavioural purposes". Chemical restraint was defined as "the intentional use of medication to control a person's behaviour when no medically identified condition is being treated, where the treatment is not necessary for the condition or amounts to over‑treatment for the condition".
In the decision of the Full Board in BCB the question of whether restraint can fall within the meaning of treatment as defined in the GA Act was said to be determined judging the facts of the case under consideration. While we accept that restraint of the represented person to facilitate her treatment may be in her best interests, given the evidence before us, we do not see it forming part of the treatment provided. The use of a 24 hour guard, the suggested use of restraints on the hands of the represented person, and medication to manage her behaviour used in the past are or would be attempts to control the voluntary movements of the represented person, albeit for the purposes of delivering health care which she needs and are therefore in our view restraints. It is not appropriate that such restraints be seen as an incident of treatment itself. In the case of the guard placed on the room of the represented person we conclude that this is clearly a restraint on her movement and not part of treatment.

The distinction between treatment and restraint to facilitate the delivery of that treatment is an important safeguard for the represented person. There is an obligation on the guardians, and those treating the represented person, to use the least restrictive possible means by which treatment may be delivered to her. Strategies to facilitate treatment may include the use of behaviour management programs, taking up the suggestion of Mr Thomson‑Harry that Mosaic staff continue to play a role in the care of the represented person while she remains in hospital or, as discussed by her mother with Dr Armstrong in the course of the hearing, the use of medication to manage her distress and agitation.
Given that we do not see s 119 of the GA Act as being a less restrictive alternative to the making of a guardianship order, either in respect of the need of the represented person for consent to treatment or in relation to the potential need that she be restrained for the purpose of delivery of that treatment, we conclude that a guardian is needed. A limited order including the functions identified is sufficient in our view to meet the needs of the represented person.

Suitable appointment

The applicant proposes the appointment of the parents as guardians. Their appointment was supported by the Public Advocate and Mr Thompson‑Harry who had been in contact with the mother of the represented person since Mosaic began providing services to the represented person. The appointment of her parents as guardians is consistent with the wish of the represented person as expressed in the interview she gave to the representative of the Public Advocate.
The parents of the represented person expressed themselves willing to be appointed, and stated that they had been making "hard decisions" in relation to the health care issues of the represented person since she was 12 years old and began self‑harming behaviour. They opposed the decision of the treating team to treat the representative person palliatively, and they stated that they were willing to enforce decisions regarding her treatment, which may involve restraint of her behaviour and restriction on her diet.
Since the parents are suitable and willing to be appointed the Tribunal cannot consider the appointment of the Public Advocate as guardian.

Orders

The formal orders of the Tribunal are as follows:
1.The parents of the represented person be appointed her limited guardians with the following functions:
(a)To consent to any treatment or health care of the represented person.
(b)To consent to the use of chemical or physical restraint in respect of the represented person, and to decide matters incidental thereto.
2.The order is to be reviewed on or before 5 May 2007.

I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER