SM - [2010] WASAT 108

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: SM [2010] WASAT 108

MEMBER: MS F CHILD (MEMBER)
MS S GILLETT (MEMBER)
MR J JAMES (SENIOR SESSIONAL MEMBER)

HEARD: 22 FEBRUARY 2010 AND 16 APRIL 2010

DELIVERED : 28 JULY 2010

FILE NO/S: GAA 3365 of 2009

BETWEEN: SM
Represented Person

Catchwords:

Guardianship and administration Application for guardianship order Proposed represented person with chronic medical problems and seeking amputation of her foot Diagnosis of intellectual disability and factitious disorder - Incapacity to make reasonable judgments about her person - Existing guardianship order made in South Australia recognised in Western Australia No need for a guardianship order to be made in Western Australia

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 43, s 44A(1), s 45, s 45(1)
Guardianship and Administration Act 1993 (SA), s 32,

Result:

Application dismissed

Category: B

Representation:

Counsel:

Represented Person : Mental Health Law Centre

Solicitors:

Represented Person : Mental Health Law Centre

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Public Advocate of South Australia applied to the Tribunal for the appointment of a guardian in Western Australia for a 46yearold woman for whom he had been appointed full guardian by the Guardianship Board in South Australia. Although the South Australian order was recognised under the Western Australian Guardianship and Administration Act 1990 (WA), the applicant sought the appointment of a guardian in Western Australia.
The woman had travelled to Western Australia and had subsequently been admitted to hospital here due to a chronic condition affecting her right foot. The Tribunal was told that the woman had an intellectual impairment and a longstanding wound on her foot. Diagnoses of Munchausen's disorder or related factitious disorder and complex regional pain syndrome or reflex sympathetic dystrophy were given. The Tribunal heard that the woman's foot would heal while she was in hospital but would break down, requiring nursing care when she was out of hospital. The Tribunal was told the woman was resistant to the treatment recommended, which involved dressing of her wounds and physiotherapy, but instead had sought, both in South Australia and Western Australia, amputation of her foot. None of the medical opinion before the Tribunal proposed amputation as a possible treatment. Further, amputation was said to be contraindicated in the context of the diagnosis of chronic (or complex) regional pain syndrome. Her mother and sisterinlaw supported the woman's request for amputation of her foot because it was her wish and their belief that it would eliminate the pain she was experiencing.
The woman through her solicitors from the Mental Health Law Centre and her advocate from the Health Consumers' Council, opposed the making of a guardianship order by the Tribunal.
Although the Tribunal found on the medical evidence that the woman was a person for whom a guardian could be appointed, as she was unable to make reasonable judgments about her person and was in need of oversight and care in the interests of her own health and safety, the Tribunal was not satisfied that there was a need for the order to be made. The South Australian guardianship order was recognised in Western Australia and the Tribunal heard that the health care professionals, the family of the woman and the Western Australian police service had all recognised the authority of the Public Advocate of South Australia to make decisions for the woman as her guardian. On a practical level, although it had been difficult, the guardian had been able to arrange and consent to medical treatment, and consent to the woman's discharge from hospital and to services on her behalf while she was living in Western Australia. The Tribunal found that there was no need for the appointment of a guardian in Western Australia.

Reasons of the Tribunal

These reasons relate to a decision of the Tribunal on an application made for the appointment of a guardian for SM (represented person) under the provisions of the Guardianship and Administration Act 1990 (WA) (GA Act (WA)).
The application was first heard on 22 February 2010 and adjourned for further evidence to be obtained. The hearing was reconvened on 16 April 2010. The represented person attended both hearings before the Tribunal and was represented by a solicitor from the Mental Health Law Centre and assisted by an advocate from the Health Consumers' Council. The represented person's mother attended the hearings by teleconference from South Australia; her sisterinlaw and representatives of the Public Advocate of Western Australia attended in person; and the representatives of the applicant, the Public Advocate of South Australia and his delegated guardian attended by video conference. A clinical psychologist who had assessed the represented person attended the first hearing.
The decision to dismiss the application was made on the day of the final hearing and a summary of the reasons for the decision was delivered orally on that day. Later, a request for written reasons was made by the Mental Health Law Centre.
As with all written reasons produced of decisions of the Tribunal made under the GA Act, the names and identifying information in relation to this matter have been removed to protect the privacy of the represented person in line with the relevant provisions in the legislation.

The application

On 31 December 2009, an application was filed with the Tribunal seeking the appointment of a guardian for the represented person. The applicant is the Public Advocate of South Australia (applicant) who is appointed the represented person's full guardian by the Guardianship Board of South Australia. The applicant submits that although this order is recognised in Western Australia, it is not practical for the guardian to fulfil the role while the represented person is in another State and geographically distant. The applicant seeks an order appointing the Public Advocate of Western Australia guardian for the represented person.
The represented person is a 46yearold woman who is reported to have an intellectual disability. She has, according to the material put before the Tribunal, lived in South Australia in a regional city with her mother some 600 kilometres from Adelaide for most of her life.
The applicant states that an application was made in June 2009 to the South Australian Guardianship Board, by staff at a regional hospital, for a guardianship order to be made for the represented person. The application was made because of what was said to be ongoing conflict between the treating health care professionals, the represented person and her family over the treatment of her right foot. The applicant states:
The foot had become painful and infected following removal of warts and had not fully healed. There had been an eighteen month history of [the represented person] being discharged home from the [regional] hospital as her foot had healed and readmitted with further difficulties with the wound on more than one occasion. At the time of the application for Guardianship it was considered there was a risk of gangrene or septicaemia if [the represented person] did not receive further treatment in hospital. [The represented person] and her mother considered then - and still are of the view that [the represented person's] foot should be amputated. [The represented person's] brother is also of this view. There has been no medical opinion that amputation is warranted, recommended or under consideration.
The documents before the Tribunal confirm that in June 2009, the Guardianship Board of South Australia appointed the South Australian Public Advocate full (plenary) guardian for the represented person.
Orders made by the South Australian Guardianship Board to date are as follows:
5 June 2009- Interim (14 day) full guardianship order.
19 June 2009 - Full guardianship order to be reviewed September 2009.
24 November 2009 - Full guardianship order to be reviewed November 2010.
Around midSeptember 2009, the represented person travelled to Western Australia. It is disputed whether the guardian knew the detail of the dates and duration of her travel plans, but it is said that consent was neither sought nor given by the guardian at the office of the Public Advocate in South Australia. Initially the guardian did not know the address of the represented person in Western Australia and her sisterinlaw acknowledges that she would not provide the address to the guardian. A 'welfare check' on the represented person was subsequently arranged by the guardian, with the Western Australian police visiting the home.
It is said, on behalf of the represented person, that the assertion the guardian did not know of the travel plans leads to an unfair implication of noncompliance by the represented person and her mother which builds on other claims of noncompliance.
In October 2009, the represented person was admitted to hospital in Perth for treatment of her foot. Soon after her admission, on or around 4 November 2009, hospital staff in Perth became aware of the South Australian guardianship order and sought consent from the guardian and liaised with his office in relation to treatment of the represented person.
The Tribunal heard that the admission of the represented person to hospital had been extended because of other health difficulties she had experienced with bladder incontinence. On discharge from hospital, she had an indwelling catheter to manage this condition.
In December 2009, the application was made for the appointment of a guardian in Western Australia. The represented person was in hospital at the time of the first hearing in February 2010. She had remained in hospital, other than some brief outings with her brother and sisterinlaw, since her admission. At the time of the first hearing the represented person was seeking discharge from hospital; however, it was considered by the guardian that she would be at risk if returned to her brother's home. Advice had been received from the hospital staff in Western Australia that when she had returned to hospital, after an outing with her brother and sisterinlaw, there was bruising to her foot and that her wound had deteriorated during the period of the day leave. The guardian said that an opinion from a psychiatrist had been that it would 'not be good' for the represented person to live with her family on discharge from hospital.
Prior to the second hearing, the represented person was discharged from hospital, with the consent of her guardian, to her brother's home. An agreement had been reached, negotiated by the advocate from the Health Consumers' Council, that she attend for dressing and treatment of her foot to a nursing service and have regular reviews by a local general practitioner.
At the resumed hearing, the represented person's compliance with treatment was questioned by the guardian following reports from the nursing service. The notes of the nursing service are before the Tribunal. The possibility that the represented person might again be admitted to hospital was raised. It is said that the guardian may seek enforcement orders pursuant to s 32 of the Guardianship and Administration Act 1993 (SA) in the South Australian Board for the return of the represented person to hospital. The guardian is reluctant to take such a step without speaking directly with the represented person. It is noted that there is no equivalent provision to s 32 in the GA Act (WA).
The applicant says that although the guardianship order made in South Australia is recognised in Western Australia, it is not sufficient to provide for the care and protection and decisionmaking the represented person needs. Decisions about the treatment of her foot and her other health concerns, including incontinence, are required. Decisions are also needed in relation to the represented person's future accommodation and the services to which she should have access.
At the time of the final hearing, it is argued that the represented person has been in Western Australia since September 2009, and her return to South Australia is uncertain. The applicant says it had been difficult to act as her guardian. The difficulties include the time difference which limits the hours in each day when the guardian can deal with service providers and health professionals in Western Australia. The applicant says that although the represented person had been living some 600 kilometres distant from the guardian when in South Australia, relationships had been established with various regional health and medical clinics and the guardian understood how these worked and was familiar with other South Australian statewide services. The guardian is unfamiliar with the services in Western Australia, including the nursing service dressing the represented person's foot on her discharge from hospital. The negotiations with the police to arrange the welfare check in Western Australia had been protracted. It is submitted that for the represented person's sake, a local guardian should be appointed as the existing arrangement is not optimal for her. Although a representative from the Public Advocate's office in Western Australia had visited the represented person, spoken to the treating team on the guardian's behalf and provided information on services in Western Australia, the South Australian guardian is not in a good position to make the decisions for the represented person as their office is not familiar with the Western Australian system, eligibility criteria and services and they are not able to speak easily or directly with the represented person and understand her point of view.
The applicant says understanding the wishes of the represented person is critical to the exercise of the guardian's functions and that the South Australian legislation, under which the guardian has been appointed, places great weight on the wishes of the person. There is a need to balance the need for protection and care against the need to be least restrictive. The principles are similar but not identical to the legislation in Western Australia.
The applicant submits that family members are not appropriate for appointment as guardian as the represented person is highly influenced by her mother, who has consistently indicated to the South Australian office of the Public Advocate and to treating practitioners that she considers that the represented person's foot should be amputated which is against all the medical advice received. The represented person is also said by the applicant to be influenced by her older brother and his wife who share her mother's view that the only treatment option for the represented person's right foot is amputation.
Finally, if a guardianship order is made, and this creates some ambiguity as to the authority of the guardian because of the existence of the South Australian order, then the applicant will seek revocation of the order.

The represented person's submissions

The Tribunal heard from the represented person through her solicitors, her advocate and directly during the hearings. At the conclusion of the second hearing, the represented person expressed her views about her choice to have an amputation of her foot. She questioned whether other persons might make that choice if they were faced with her experience. She also questioned whether her views and wishes would be treated differently if she did not have problems making decisions.
The Tribunal also has the benefit of a DVD which recorded conversations between the represented person and her advocate from the Health Consumers' Council. The presentation of the represented person in the recording contrasted markedly from her initial reluctance to speak at the hearings or her reported childlike behaviour when in unfamiliar surroundings. The DVD shows that she is able to express quite clearly her views and wishes.
At the first hearing it was submitted that there was insufficient evidence before the Tribunal to make a finding about the incapacity of the represented person to make decisions for herself sufficient to satisfy s 43(1)(b) of the GA Act (WA) and the application should be dismissed. It was submitted that there had not been any assessments of the represented person's capacity by a psychiatrist in Western Australia.
It is also submitted that although the decision about amputation of the represented person's foot is not a decision for the Tribunal, it is a supplementary and essential consideration to the decision about the need for a guardian. The submission is that the decision of the represented person to choose amputation is a reasonable response to the pain she is experiencing in the face of what she understands to be an untreatable and incurable condition. If that position is accepted, that her choice is a reasonable one in the circumstances, then it follows that there is no need for a guardian. It was submitted that expert opinion should be sought about the condition of the represented person's foot.
The Tribunal adjourned to gather further evidence regarding the capacity of the represented person to make treatment decisions and for current information about her condition. Orders were made for the production of hospital records from both South Australia and Western Australia. Despite attempts to obtain further reports from both the consultant psychiatrist to provide an opinion about the represented person's capacity to consent to treatment, and the consultant physician who was responsible for the represented person's medical treatment in hospital in Western Australia, no further reports were produced.
However, the Tribunal obtained hospital file notes from both hospitals in South Australia, the progress notes from the hospital in Western Australia and the service providing nursing care to the represented person following her discharge from hospital in Perth.
At the resumed hearing in April 2009, the submission is again made on behalf of the represented person challenging the medical evidence before the Tribunal. The represented person denies she lacks capacity to make decisions about her medical matters and the proposed amputation and says that there has not been an adequate assessment of her capacity in this regard. The opinion of the psychiatrist given in the hospital notes is challenged, as the represented person's mother asserts that the psychiatrist did not conduct an independent assessment. It is argued that the psychiatrist's opinion must be based on the views of other persons.
The diagnosis of factitious disorder and 'codependency' on her mother is also challenged on behalf of the represented person.
A request was made at the second hearing that further time be allowed to enable a full assessment of the represented person to be undertaken.
In response, the applicant submits that the diagnosis of intellectual disability has been accepted by everyone involved with the represented person, including her family, for some time. In respect to the request for a further capacity assessment to be undertaken, the applicant says that there had been an offer in December 2009 to the guardian to fund an additional capacity assessment of the represented person. An email had been received from the Health Consumers' Council advocate offering to arrange and pay for an additional assessment of the represented person's capacity to make decisions about medical treatment. The applicant says that a response was made on 23 December 2009 welcoming the assessment. The evidence of the applicant in this regard is not challenged.
It is unclear if the assessment did take place, but no further reports or evidence are submitted on behalf of the represented person.

The Tribunal did not consider that a further adjournment should be granted since this was the submission made in February when the matter was first heard, but it appears no further assessments were obtained in the intervening period.
Further, a submission is made on behalf of the represented person that since an order had been made in South Australia, the question of capacity of the represented person has been determined by the South Australian Guardianship Board. No order of the Tribunal would vary the order made which remains in place until the South Australian Board reviews it. It is further submitted that the Tribunal does not have jurisdiction to make an order appointing a guardian for the represented person.
Finally, it is argued that no order should be made since the represented person is returning to South Australia and her return has only been delayed by the hospital admission in Western Australia.

Evidence and material before the Tribunal

The Tribunal received a number of reports and also obtained medical records of the represented person from hospitals and health services who had treated her both in South Australia and Western Australia.
The records obtained are extensive; they record medical management, including the results of various investigations undertaken, and notes of doctors, nurses and other health professionals regarding that management. Also recorded are behavioural observations made and psychological and psychiatric assessments.
It seems many of the South Australian reports were before the Guardianship Board of South Australia when it had made the original guardianship order.
The Western Australian hospital notes before the Tribunal include an inpatient discharge letter addressed to the general practitioner which shows the date of discharge of the represented person as 12 March 2010. The letter notes that a bone scan was undertaken and reports the findings:
There are no convincing features to suggest osteomyelitis complicating the multiple areas of ulceration on the right foot and in the distal right shin. The scintigraphic appearances suggest soft tissue inflammation only.
The letter notes that opinions had been sought from 'Dermatology, Infectious disease and Vascular teams' and states 'Amputation of the foot is considered inappropriate keeping in view the self healing ulcers and no underlying bone infection'.
There are references in the hospital notes dated 20 January 2010 to 'revisit the possible [diagnosis] of investigation of RSD [sic] (Chronic Regional Pain Syndrome)'. On 22 January 2010, notes recorded by Dr BM include:
[Left] foot xray shows that there is a marked difference in the degree of osteopaenia between [left] and [right] foot.
The fact that the [right] foot is much more osteopaenic means that the diagnosis of chronic regional pain syndrome (Reflex Sympathetic Dystrophy).
I note that this [diagnosis] had previously been given in Adelaide, but had been questioned by [the consultant] this admission.
The diagnosis of CRPS is in complete contraindication (original emphasis) with foot amputation so this does not change overall management in any way.
Although the first paragraph of those notes appears incomplete, read as a whole we take the notes to mean that a diagnosis of chronic regional pain syndrome was made. In the South Australian records, this condition is referred to as complex regional pain syndrome.
In terms of evidence of capacity, although the report is challenged as being too old to be of probative value as to capacity, the report prepared in August 1994 by GF, a clinical psychologist, is consistent with later reports of the represented person's functional abilities and supports the submission that her intellectual impairment is well understood by her family. At that time the represented person had been on a disability pension since the age of 16 years and worked part time in sheltered employment. She was accompanied to the assessment by her mother who is reported to have provided the history. In the conclusion, the report notes:
[The represented person] thinks and responds very slowly and should never be in a situation where her safety depends on her own ability to make decisions and to act promptly and appropriately. Overall, her intellectual functioning is at the level of a child of six to seven years of age and she could perform work able to be done by children of this age.
A report dated 7 May 2009 by a psychologist EH, produced for the Guardianship Board of South Australia, reports on an assessment of the represented person's capacity to give informed consent to medical procedures specific to the treatment of the wound on her foot. The report notes:
[The represented person] had stated she would like to have her foot 'taken off' (amputated) so she no longer needs to spend long periods of time in hospital waiting for the wound to heal. … [The represented person] was unable to list the main consequences of having her foot removed and she was unable to discuss any possible risks involved with this. She and her mother kept repeating that they would 'deal with the problems as they arose'. The [represented person] was unable to think about alternatives to having her foot amputated; her treating team have suggested referral to the wound clinic and pain clinic in Adelaide and [the represented person] has dismissed these stating that nothing other than amputation would work. In the past, [the represented person's] mother has consented on her behalf for medical procedures, stating that [the represented person] is often unsure of what she is signing and that they have a mutual trust that [the mother] will act in [the represented person's] best interests. Based on my discussion with [the represented person], it is my opinion she does not have capacity to give informed consent in regards to having her foot amputated. While she is able to clearly express the problems with her foot and her current pain, she is fixated on the idea of having her foot removed, to the exclusion of considering any alternatives. She is unable to express the possible risks associated with having her foot amputated and is unable to identify the consequences of amputation.
The report of Dr KA, a general practitioner, dated 4 June 2009, also refers to the reports given to the Guardianship Board of South Australia. She reports that the represented person has an intellectual disability. Dr KA says she had seen the represented person 90 times in the period of four years. The report states:
Intellectually challenged, chronic wound [right] foot, reflex sympathetic dystrophy, over dependency on the mother, fixated to the idea that only option to treat the leg wound is amputation. Above idea reinforced by mother. Does not have the ability to consider options at all. Easily influenced by mother's opinion. Mother wants the leg amputated so as to get on with her life.
Dr SB, another general practitioner, in a report dated 18 January 2010, advises he is not the represented person's regular doctor but had taken care of her between 5 June 2009 and 28 August 2009. The diagnosis given is of an 'intellectual disability'. He goes on to say:
Complex case. [The represented person] mimics mothers [sic] behaviour [and] suggestions.
A report from Dr BM, medical officer at the hospital in Western Australia, dated 2 February 2010, also gives a diagnosis of 'intellectual impairment', 'mild to moderate cognitive impairment', which is described as a 'static' condition. She refers to recent cognitive assessments completed by a clinical psychologist at the hospital. The opinion of Dr BM is that the represented person is incapable of making decisions about her personal health care and her living situation. The report notes:
She has a factitious disorder (Munchausen's disease) exacerbated by her family members. She is easily upset and wants a family member to be a guardian, therefore attending the hearing may be distressing as she lacks insight into her condition.
The report of Dr DM, a clinical psychologist, notes that the assessment of the represented person referred to above was conducted at the hospital in December 2009. His report notes the represented person:
… continued to report significant difficulties with pain in her right foot, remaining adamant that the foot be amputated as a solution to her difficulties. As outlined in [a psychologist] assessment of May 2009, this view was also held by her family. …
The results of the current assessment suggested that medical staff should adapt their communication approach with [the represented person] to take account of areas of weakness. Her poor vocabulary and ability to think in the abstract with verbal material relative to her age peers, slow speed of information processing and poor auditory working memory are all potentially complicating factors where [the represented person] is in receipt of information. … As previously [sic] in May 2009, [the represented person] appeared unable to provide any detail regarding the potential complications and difficulties of amputation. She continued to refuse physiotherapy[,] focusing on increasing use of her foot and leg at the time of assessment. As noted in May 2009, she was still appearing to engage in some level of selfinjury, which had been noted by ward staff, who reported her using cutlery to scratch at her wounds.
Dr DM attended the first hearing at short notice and provided further evidence to the Tribunal. He said that the represented person's capacity to consent to medical treatment would be best assessed by a psychiatrist.
Although there is no written report from her, the Tribunal has notes from Dr L, the consultant psychiatrist from the hospital in Perth.
The note of 3 March 2010 states:
[The represented person] believes that if she has her 'leg amputated' life will be fine, 'I'll be able to walk around. I'll have a prosthesis'.
[The represented person is] not able to elaborate on this as to [the] difficulties/pitfalls. Adamant that there will be no problems with amputation. When I suggested that she didn't expect any problems after the dry ice treatment (that allegedly happened at the start of all her problems 3 years ago), she was unable to make a comment.
[The represented person] further commented that if she was not offered a foot amputation by the medical establishment, she would do it herself. Would not be drawn out as to how she planned to do this.
In summary, in regard to competence to make decisions about her medical management, Dr L states:
[The represented person] is unable to engage in a discourse about the likely benefits and possible complications of possible treatments. Thus, she is not able to make a balanced decision about treatment. She has consistently requested amputation of the foot in spite of constant and extensive explanations and discussions by numerous staff members regarding the pitfalls associated with this procedure.
A decision regarding her management must therefore be made by third parties. …
The mother of the represented person challenges the assessment of Dr L and says that the represented person had said that Dr L had only been with her for 15 minutes. The Health Consumers' Council advocate supports this, based on the report of the represented person of her contact with Dr L, and submits that Dr L's opinion must be based on information gathered by others.
Dr L's notes in the file dated 6 January 2010, headed 'psychiatry review', state:
[The represented person] has been seen regularly by our PLN; see notes.
There is no evidence of an axis I psychiatric disorder. There is of course evidence of a modest intellectual capacity and circumstantial (but convincing) evidence of Munchausen's syndrome or some related factitious disorder.
She has been extensively reviewed by psychologist [DM] who confirmed deficits in a range of cognitive functions.
[The represented person] is not capable of making reasonable decisions for herself.
PLN is understood to mean psychiatric liaison nurse and it is accepted by the sisterinlaw that the mental health nurses visited the represented person up to three times per week while she was in hospital.
The opinion given by Dr L is consistent with one given by Dr B, another psychiatrist. Dr B's opinion is in the clinical record provided by the major hospital in South Australia. The notes dated 27 May 2009 include the following:
The current presentation is consistent [with] a chronic pain disorder [with] factitious disorder prev[iously] Munchausens syndrome.
The idea of amputation which is proposed by [the represented person] and her mother is held with a degree of tenacity [and] non responsiveness to rational argument that borders on delusional (original emphasis).
…
As the pain is clearly neuropathic in nature it would almost certainly persist after amputation and perhaps even [illegible]
The represented person's mother states that she knows what Munchausen's [disorder] is and she is insulted by that description.
The suggestion of 'co-dependency' between the represented person and her mother is also challenged. It is submitted that the represented person has been in Western Australia for many months and her mother had remained in a regional city in South Australia. It is also submitted that the represented person attends the service for dressing of her leg without the assistance of her sisterinlaw. However, the nursing notes from 16 March 2010 note the sisterinlaw as providing the history and accompanying the represented person on two of the three dates of attendances noted.
Included in the hospital notes is a copy of a letter dated 26 October 2009, acknowledged by the sisterinlaw to have been signed by her, and sent with a disc containing photographs of the represented person's foot to the orthopaedic surgeon at the hospital and to a commercial current affairs television program. The letter gives a background of the position from the represented person's perspective and concludes with the comment:
I thought I had faith in our health care system over here in Western Australia and brought [the represented person] over here for treatment.
The sister-in-law confirms that the represented person had come to Western Australia for a second opinion, to attempt to get treatment which had not been provided in South Australia and to get the represented person away from the bureaucracy in South Australia, which the Tribunal takes to mean the Public Advocate of South Australia.
This contradicts earlier evidence and submissions that the represented person had come to Western Australia simply for a holiday and that the holiday plans had been discussed with the guardian.

Submissions of the Public Advocate of Western Australia

The Public Advocate of Western Australia submits that there is no need for a guardianship order to be made by the Tribunal as the South Australian order is recognised in Western Australia.
The demands of a guardianship order when the represented person is outside the jurisdiction are acknowledged, but it is said this is the experience of the Public Advocate of Western Australia in similar circumstances. The representative of the Public Advocate asserts that the Public Advocate's office in Western Australia is ready to assist the South Australian guardian in practical ways with information, liaison with local resources and visiting the represented person. The Public Advocate submits that it has not been difficult for the representative of the Public Advocate, the solicitor acting for the represented person and the advocate from the Health Consumers' Council to communicate with the represented person and obtain her views and wishes. It is further submitted that if a concurrent guardianship order is made, that there is potential for differing views between the appointed guardians which may create uncertainty as to who is the decisionmaker for the represented person.

Submissions of the family

The mother says the represented person does not need a guardian. She questions why the guardian does not support the represented person's own choice in respect of the proposed amputation.
The mother does not accept that there had been a diagnosis regarding the represented person's foot; she said:
How do we know? Nobody's got into it to find out. Nobody can give me a diagnosis, a proper diagnosis that is not between her ears. When somebody can give me that, then we can consider other options …

Legislative framework

To appoint a guardian in Western Australia, the Tribunal must be satisfied that the person for whom the application is made meets the criteria set out in s 43(1) of the GA Act:
...
(a)has attained the age of 18 years;
(b)is
(i)incapable of looking after her own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to her person; or
(iii)in need of oversight, care or control in the interests of her own health and safety or for the protection of others;
and
(c)is in need of a guardian,
…
These provisions are subject to principles set out in s 4 of the GA Act (WA) which the Tribunal is required to observe in all proceedings commenced under the GA Act (WA).
The principles in s 4 of the GA Act provide that the primary concern of the Tribunal must be the best interests of the represented person. The principles also state that every person shall be presumed to be capable of looking after their own health and safety, of making reasonable judgments in respect of matters relating to their person, of managing their own affairs, and of making reasonable judgments in respect of matters relating to their estate, until the contrary is proved to the satisfaction of the Tribunal. If the contrary is proved, any order made should be in terms that impose the least restrictions possible, in the circumstances, on the person's freedom of decision and action.
In considering any matter, the Tribunal is bound to attempt to ascertain the wishes of the represented person as expressed or, if necessary, as gathered from the person's previous actions.
Section 44A(1) of the GA Act (WA) provides for the recognition of a guardianship order made in another State or Territory through interstate arrangements entered into by the Attorney General of Western Australia with the relevant Minister in the 'foreign' jurisdiction. Such an arrangement exists with South Australia pursuant to an agreement published in the Western Australian Government Gazette, No 81 (21 April 1998) 2116.
The effect of the recognition arrangement is that a guardianship order made in South Australia has, while the represented person is in Western Australia, the same force and effect according to its terms as a guardianship order made under the Western Australian GA Act. In this case, the order made in South Australia appoints the Public Advocate of South Australia as 'full guardian' of the represented person.
This order is equivalent to an order appointing a plenary guardian in Western Australia. The powers of a plenary guardian are described in s 45 of the GA Act (WA), and are effectively the powers of a parent in respect of a child lacking mature understanding (s 45(1)).

Issues to be determined

To appoint a guardian, the Tribunal must be satisfied that any of the paragraphs of s 43(1)(b) of the GA Act (WA) apply to the represented person and she is in need of a guardian s 43(1)(c) (GA Act (WA)).

Capacity s 43(1)(b)

Despite the failure to obtain reports from the psychiatrist and the consultant physician following the adjournment, the Tribunal does not accept the submissions made on behalf of the represented person that there is insufficient evidence to make findings about her capacity.
The Tribunal considers that there is sufficient evidence in the reports and the material before it. Although this evidence is challenged, no other expert or professional opinion is put before the Tribunal. The Tribunal accepts the assessments of Dr L as set out in the progress notes, and the other reports referred to above. The notes were not produced for the purposes of this application, but were contemporaneous notes created for the purposes of the management of the represented person's treatment in hospital, however, no less weight should be attached to them because of that. The evidence produced for the South Australian Guardianship Board is consistent with the most recent assessments and confirm reports that the represented person has an intellectual disability and is not able to make reasonable judgements about medical treatment.

We find that assessments were conducted by the psychiatrist Dr L, in March 2010 and January 2010. Her findings are consistent with the notes made by Dr B, a psychiatrist who assessed the represented person in May 2009 in South Australia.
We are not able to determine the time taken to conduct the assessment but are satisfied that the assessment took place. It may be that in reaching her view, Dr L did consider the views of others, she refers to Dr DM's assessment, and it may be that she also considered the notes of the psychiatric liaison nurses. We do not accept that this undermines her assessment that the represented person is not able to make reasonable judgments about her person in relation to the treatment of her foot. Much of contemporary health care is delivered by 'teams' of professionals drawn from a range of disciplines, hence the integrated progress notes before us.
Based on material we have received from the hospitals, and the consensus of the medical and psychological assessments, including psychiatric and psychological assessments that the represented person has an intellectual disability, we find that she is not capable of consenting to medical treatment and we accept the evidence that she is often noncompliant with prescribed treatment. We accept she does not understand the consequences of the amputation she proposes. All of the medical evidence and the psychological evidence is consistent on that point. Based on these reports and this evidence, we do find that the represented person is a person for whom orders can be made, in that she satisfies all of the paragraphs set out in s 43.
In respect of the inability to look after her own health and safety, we find that the evidence is that the represented person is reliant on others for her care and medical staff to assist her.
In respect of the inability to make reasonable judgments in respect of matters relating to her person, she is not able to engage fully in a discussion about various forms of treatment and to understand the consequences and risks of amputation.
In respect of the need for oversight and care, the represented person is reliant on others for her care and it is apparent from the hospital and nursing service provider notes that she does not consistently comply with medical treatment that has been prescribed for her.
While we accept that the represented person does experience very significant pain, the failure to attend appropriately to the wound on her foot does put her at risk of deterioration in that wound. There are also reports of her repeated statements that if the medical team does not amputate her foot, she will do it herself and there is a report of her attempting to injure herself with cutlery while in hospital. We are satisfied that the represented person is a person for whom a guardian can be appointed.

Need s 43(1)(c)

In respect of the second limb of s 43, which is the need for a guardian, we note that the Guardianship Board of South Australia made an order in June 2009, and confirmed it in November 2009, appointing the Public Advocate of South Australia as the full guardian for the represented person. The order is due for review in November 2010. The order is recognised in Western Australia pursuant to s 43A of the GA Act (WA). The effect of this is as though the order had been made by the Tribunal.
We do not accept the submission that the Tribunal does not have jurisdiction to make a guardianship order for the represented person. Although we accept that the represented person regards her home with her mother in South Australia and that she is intending to return to her home in July 2010, we consider that the Tribunal does have jurisdiction to make an order for someone who is resident in Western Australia. However, the Tribunal must be satisfied that the represented person needs a guardian.
We accept, on the evidence before us, that the represented person needs a substitute decisionmaker. The evidence includes the written material referred to above, the represented person's presentation to the Tribunal, and the evidence of her mother and sisterinlaw that the family place reliance on her expressed wishes for an amputation of her foot. This is in the face of assessments which say she is not capable of forming that judgment and the medical advice before us, which we accept, that amputation is not indicated or appropriate for the medical condition that she suffers. Because of this, we find she is in need of an independent guardian to make decisions based on medical advice and in her best interests and, further, to make decisions about services and where she is to live.
We accept there has been less than full cooperation by the represented person and her family with her appointed guardian. For example, while we accept there was some discussion about a trip to Western Australia, we find that consent was not sought or given for the trip to Western Australia for either a holiday or, as her sisterinlaw confirms, for the purpose of medical treatment for the represented person.
The real question is whether the represented person needs an order made by this Tribunal appointing a guardian in Western Australia. We conclude that she does not.
We accept what is said on behalf of the applicant that the guardian has had significant difficulty undertaking his role since the represented person came to Western Australia. We accept also the liaison with service providers and treating doctors and the nursing service has been difficult due to the lack of familiarity with the Western Australian system and to the time difference and the subsequent difficulty in making contact with people providing services directly to the represented person.
We note in the hospital notes that once hospital staff in Western Australia were aware of the guardianship order from 4 November 2009, they sought and obtained consent from the guardian for treatment and discharge planning for the represented person.
We do not minimise the difficulties associated with this guardianship order. We accept the complexities of the case and the additional problems associated with the lack of cooperation by and strained relationships the represented person and her family appear to have with the guardian and the health professionals involved in her care. We acknowledge that the guardian's role in addressing and providing for the represented person's needs is much more challenging than it would otherwise be because of this, but we do not consider that the geographical distance or being physically outside the jurisdiction is an overriding factor in this context.
Having regard to all of the above material and to the legislative framework in Western Australia, we do not consider that there is a need for an order to be made by the Tribunal in Western Australia. This is because the appointed guardian has full powers which are recognised in Western Australia and there is evidence that the guardian is exercising those powers and that the decisions of the guardian are being put into effect.
In making the decision to dismiss this application, we are mindful that the represented person states she has firm plans to return to South Australia on 8 July 2010.
For the reasons set out above, the application for the appointment of a guardian for the represented person in Western Australia is dismissed.

Order

The guardianship application is dismissed.

I certify that this and the preceding [98] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER