SM
[2015] WASAT 132
•24 NOVEMBER 2015
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: SM [2015] WASAT 132
MEMBER: MR J MANSVELD (SENIOR MEMBER)
HEARD: 13 NOVEMBER 2015
DELIVERED : 20 NOVEMBER 2015
PUBLISHED : 24 NOVEMBER 2015
FILE NO/S: GAA 4434 of 2015
GAA 4435 of 2015
MATTER: SM
Represented Person
Catchwords:
Guardianship and administration Capacity Mental disability Mental disability in context of a lack of a formal diagnosis of a medical condition Need for orders Suitability for appointment as guardian and administrator Guardian appointed No need for an administrator Less restrictive alternative to be allowed in management of represented person's finances
Legislation:
Guardianship and Administration Act 1990 (WA), s 3(1), s 4, s 43, s 44, s 64(1)(a), s 64(1)(b), s 68, s 69, s 71, s 84
Result:
Public Advocate appointed as limited guardian
Administration application dismissed
Summary of Tribunal's decision:
Applications for guardianship and administration orders were made pursuant to the Guardianship and Administration Act 1990 (WA) for a young woman who had suffered a significant medical condition at an early age and was fully dependent on others for her care needs.
The applications were made by the care team at a hospital because the woman was required to transition to adult health services. This involved a need to change the accommodation in which she had been living since a young child and also to change her longstanding medical and allied health team.
The woman had been assessed as having an impaired cognition including difficulties with her executive functioning. She was assessed as having a highly concrete style of reasoning, and she demonstrated difficulty in adequately understanding and interpreting language that was vague, ambiguous, or may contain hidden meaning.
The woman was not assessed as having an intellectual disability, but rather, that her reduced cognition was likely the consequence of a complex combination of her medical history with, to a greater extent, the cumulative effect of the psychosocial and educational limitations subsequent to her complex medical status.
Although not able to be labelled with one of the conditions mentioned in s 3(1) of the Guardianship and Administration Act 1990, the Tribunal found that the woman did have a mental disability. Although the definition in s 3(1) of the Guardianship and Administration Act 1990 mentioned certain generally accepted conditions which could impact on a person's cognitive abilities, it was not an exhaustive list and the Tribunal accepted that the definition had been drafted to allow for other ways in which a person's fundamental cognitive functioning might be affected.
The Tribunal found that the Public Advocate should be appointed the woman's guardian and did not appoint the woman's mother because of a longstanding breakdown in communication between her and the woman's medical team and other service providers.
The Tribunal decided that a less restrictive alternative to the making of an administration order was available and dismissed that application.
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
GC and PC [2014] WASAT 10
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These reasons were delivered orally on 20 November 2015 and have been edited from the transcript.
Applications for guardianship and administration orders have been made in respect to SM by the Child and Adolescent Health Services at a Perth hospital (hospital).
The relevant legislation is the Guardianship and Administration Act 1990 (WA) (GA Act).
At the time of the hearing, SM was 17 years of age and had reached 18 years of age prior to the decision of the Tribunal.
The applicant states that not long before reaching the age of one, SM was admitted to hospital after contracting a viral inflammation of her spinal cord. SM lived in the hospital for four years and was then transferred to supported accommodation (LLC). According to the report from LLC, the accommodation was never intended to be permanent and has not been able to deal with SM's need for normal social development. The report states that SM has not had the opportunity to become a contributing member of any alternate group of people other than carers at LLC because of her complex care needs.
Because she has reached 18 years of age, SM is required to transition to adult care in the health system and this will necessitate a profound change, not only concerning her accommodation but also in the medical and allied health teams that will attend to her special needs.
The relevant legislation
The GA Act is often characterised as a form of protective legislation. It provides for the appointment of a guardian for personal decisionmaking and an administrator for financial decisionmaking in situations where a person has a degree of impaired cognition and who might therefore be at risk of making decisions contrary to their best interests or be vulnerable to the decisionmaking of others.
Despite a determination that a person is in need of protection by the making of guardianship and administration orders, it should nonetheless not be forgotten that in making those orders, the person loses the right to make fundamental decisions which affect their life.
It is important therefore to ensure that orders are only made when incapacity is found and need is determined.
In order to achieve this balance between protection and autonomy, the GA Act establishes a process that the Tribunal must follow to get to a point where orders might be made. This process can be described as the need to respond to a number of questions in respect to the person for whom an application has been made, which questions are bound up with a set of principles that the Tribunal must observe in making its decisions: s 4(1) of the GA Act.
The first question to be resolved is that of SM's capacity. The starting point in the determination of that question is that there is a statutory presumption of capacity; namely, that SM is presumed capable of managing her personal and financial affairs until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act.
In GC and PC [2014] WASAT 10 at [36], the Full Tribunal stated that:
… [b]ecause of the significant consequences for an individual of having their decisionmaking capacity removed from them and a substitute decisionmaker appointed for them under the GA Act, clear and cogent evidence is required to rebut the statutory presumption of capacity.
The particular provisions concerning capacity in the GA Act are s 43(1)(b) for guardianship and s 64(1)(a) for administration.
The effect of s 43 of the GA Act is that the Tribunal cannot consider appointing a guardian for SM unless it can be satisfied on the evidence that she is incapable of looking after her own health and safety; is unable to make reasonable judgments about 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.
The effect of s 64 of the GA Act is that the Tribunal cannot consider appointing an administrator unless it can be satisfied on the evidence that, by reason of a mental disability, SM is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.
The second question, assuming a finding of incapacity has been made, is whether SM is in need of guardianship and administration orders: s 43(1)(c) and s 64(1)(b) of the GA Act. The GA Act states that if the needs of SM can be met in a manner less restrictive of her freedom of decision and action then orders should not be made: s 4(4) of the GA Act.
The final questions, assuming the need for orders has been determined, is to decide what authority should be given to the guardian and administrator, who the guardian and administrator should be and what review date should be set, given the requirement that orders must be reviewed at least once every five years: s 43(1)(d), s 44, s 68, s 69, s 71 and s 84 of the GA Act.
As to the authority given to a guardian, the GA Act states that if a limited order is sufficient to meet the needs of SM then a plenary order should not be made: s 4(5) of the GA Act. Even if limited guardian and administration orders are made, it is a requirement that the orders place the least restriction necessary on SM: s 4(6) of the GA Act.
The primary concern of the Tribunal is that of the best interests of SM, taking into account, to the extent possible, her views and wishes: s 4(2) and s 4(7) of the GA Act.
The question of SM's capacity
The principal evidence concerning the capacity of SM to make her own personal and financial decisions is that of JM, a senior clinical neuropsychologist.
JM undertook extensive neuropsychological testing with SM. His assessment and opinion can be relevantly summarised as follows.
SM was not able to describe her medical condition or care needs. She could not detail the medications she was taking nor why she was taking them. She was not clear on the logistical details of the move to her new accommodation (new accommodation). She reported that she had not had a discussion with anyone about the transition to adult health services. She reported that her aunt and her parents currently make all decisions regarding her health care and living arrangements.
SM is in year 11 mainstream classes for some subjects. She reports that she usually does not understand what she is reading. She does not do mathematics at school. Her understanding and description of what she does at school are vague and lack any structure or detail.
SM receives a disability support pension but she is unaware of how much it is each fortnight. She says that she gets money from her parents or her aunt; however, she could not say how they got that money. She says she sometimes just goes to the bank and withdraws money.
SM is oriented to person, place and time. Her intellectual abilities are assessed as borderline to low average. The results warrant clinical concern and are not inconsistent with that seen in people diagnosed with an intellectual disability.
However, SM does not meet the criteria for that condition (intellectual disability) given, in particular, her impoverished educational and socialisation opportunities. This has in all likelihood contributed over the years to a lowering of her core cognitive abilities.
SM will have difficulties in manipulating and working with information presented to her which is not simple and concrete. She has difficulties in terms of verbally demonstrating an understanding of abstract concepts. Her memory is intact and she is quite capable of learning new verbal material and retaining this over time. She has difficulties with executive functioning due to generally reduced verbal abilities, driven in no small part by her general life experiences. This is an area of concern as SM moves into adulthood.
Executive functioning is used in planning and organising one's life; it involves a capacity to foresee the consequences of one's decisions and the decisions of others, and also an understanding that actions can have unintended consequences. SM has a marked vulnerability in this area and an impaired ability to understand the longterm implications of medical and accommodation decisions, including those made by others for her.
SM displays a highly concrete style of reasoning and demonstrates difficulty in adequately understanding and interpreting language that is vague, ambiguous, or may contain hidden meaning. This situation has likely come about through a complex combination of her medical history with, to a greater extent, the cumulative effect of the psychosocial and educational limitations subsequent to her complex medical status.
SM will struggle to comfortably communicate a position on an emotional topic, such as healthcare, living or personal relationships, and maintain this position in the face of conflicting argument, particularly from those to whom she feels an emotional attachment. SM lacks capacity to appropriately exercise cognitive control and understanding over the more complex issues related to her finances, complex healthcare, and living arrangements. She should not, however, be excluded from the decision‑making process.
It is unlikely that the deficits described for SM will improve in the short‑term, although it is expected that some maturation will occur.
The assessment of JM is largely accepted by the parties although, given the complexity of SM's situation, there is some variation in the evidence as to the extent to which, in a practical sense, SM can understand her needs.
For example, the Clinical Support and High Needs Unit Manager and the Behavioural Support Manager at LLC state in their report that SM understands her care requirements in concrete terms. They say that she does not understand her wider healthcare needs in terms of complexity and risk, and is fully dependent on carers to assume that responsibility.
On the other hand, the Local Area Coordinator (LAC) from the Disability Services Commission in her report states that SM has been actively involved in the transition planning from LLC to the new accommodation and is of 'sound cognition'.
I accept the evidence of JM as correctly describing the current limits to the decisionmaking abilities of SM. There is no contrary specialist assessment, and the evidence of the parties at the hearing, generally speaking, is that SM's dependency on others places her in a position of great vulnerability.
It is accepted by all the parties that SM should play an important part in any decision that needs to be made in respect to her future; however, the limits to her cognitive capacity are such that she is unable to fully assimilate the information required - for example, to make a serious medical decision or a decision about her accommodation - and further, she is unable to fully grasp the long-term implications, including possible unintended consequences, of those decisions. As JM puts it, SM sees things in concrete terms and is unable to appreciate the nuances of the circumstances in which a decision is made.
I am satisfied on the uncontested evidence that SM is incapable of looking after her own health and safety. She is totally dependent on others to maintain her care and, more fundamentally given her need for ventilation, maintain her life.
I am also satisfied that SM is in need of oversight and care in the interests of her own health and safety, again on the basis that she is wholly dependent on others to maintain her life and health.
I am satisfied that SM is unable to make reasonable judgments about significant personal decisions in the context of her unique circumstances which currently includes a change of accommodation and a transition to adult health services. Given her cognitive deficits, she is not able to protect or advocate for her own best interests.
As regards to her financial affairs, the interesting question is whether the evidence supports the making of a finding that SM has a mental disability: s 3(1) and s 64(1)(a) of the GA Act.
Mental disability is defined in s 3(1) of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
JM characterises the level of SM's cognition, including her executive functioning, as similar to a person who might be described as having an intellectual disability. However, SM does not have an intellectual disability in the way in which that diagnosis might otherwise be made. Rather, JM assesses the likelihood of SM's cognitive deficits as being largely the product of the cumulative effect of her impoverished educational and socialisation opportunities.
The report from LLC states that SM does not have numeracy skills and has no concept of budgeting. The LAC is more sanguine about SM's ability but puts it in terms of a supported decisionmaking process when assisting SM to open a bank account and her signing the relevant bank documents to open the account.
Although not able to be neatly labelled with one of the conditions mentioned in s 3(1) of the GA Act, I am willing to accept, on the evidence, that SM has a mental disability on the trite observation that the evidence supports such a finding. The ordinary meaning of the words 'mental' and 'disability' refer to, amongst other things, a lack of competent ability or weakness relating to the mind or intellect: Macquarie Dictionary Online (2013). Although the definition in s 3(1) of the GA Act mentions certain generally accepted conditions which can impact on the person's cognitive abilities, it is not an exhaustive list and, in my view, was drafted to allow for other ways in which a person's fundamental cognitive functioning might be affected.
JM has assessed SM as having a limited intellectual functioning, most likely as a consequence of the circumstances in which she has found herself since her very early childhood. Importantly, he assesses that intellectual functioning as if it were an intellectual disability. In my view, any label that might be attached to SM's cognitive deficits is secondary to the existence of those deficits and their effect on her ability to make reasonable judgments about her estate.
The estate of SM is small, comprising of her entitlement to the disability support pension and funds of approximately $26,000 held in a bank account. The question for the Tribunal is whether SM's mental disability has an impact such that she is unable to make reasonable judgments about all or any part of her estate.
Although the estate is relatively simple, I am not convinced that SM could manage it on her own, given the assessment of JM, including her vulnerability to withstanding any request for funds from others.
The management of the funds currently available to SM requires an understanding and appreciation of not only her present needs but also her future needs, and a capacity to plan and budget which is, at this time, beyond SM's ability if left to do so on her own.
The need for orders
Dr V, paediatrician from the Complex Care Team at the hospital, and representatives of LLC and the LAC largely describe a situation over a long period of time of limited involvement by SM's parents in decisionmaking around her medical treatment, her accommodation in LLC and, more recently, in planning around the transition to adult services.
In her evidence, Dr V states that the Complex Care Team has had substantial longterm issues of engagement with SM's mother (DM) regarding SM's medical therapy and general care needs. Over the last five years there has been an increasing inability to proceed with clinically indicated medical treatment due to, according to Dr V, the refusal by the family of SM to attend medical appointments, to discuss medical treatment options or to sign consent forms. An example used by Dr V involves proposed bladder surgery to deal with the consequences of longterm indwelling catheter use. Dr V states that in order to prompt a decision on the surgery, in May 2014 she referred the matter to the Clinical Ethics Committee at the hospital. In the letter of referral dated 5 May 2014, Dr V stated:
We would be pleased to discuss with the Ethics Committee the role of independent consent by [SM] for this procedure as well is utilising the opportunity for this service to invite [DM] to attend for an independent commentary regarding her concerns with this procedure as she will not engage with the health system.
The report from LLC states that SM has had occasional visits to her family home over the years. However, she has spent many birthdays and Christmases with staff and their families. The relationship with her mother has been limited to intermittent 15 minute visits and to one‑off family visits to the family home. The report further states that SM will be transitioning to TAFE on a permanent basis but that there has been little or no interaction by her family with her education.
The LAC states that she has been involved with SM since 2005 and has worked with her parents and service providers. She states that some of her evidence is by way of information she has received from her communication with the staff at LLC.
The LAC refers to a referral from LLC to the Department for Child Protection (DCP) from about 2005 to 2011 alleging neglect of SM, and insufficient involvement and lack of any financial contribution by the family to her needs. The LAC reported that there were many attempts by DCP to assist the parents but with limited success. DCP ultimately decided not to make an application for care and protection.
The LAC states that SM receives irregular visits from her family who have often cancelled prearranged visits to SM over the years.
The LAC states that it is her understanding that SM's parents have received a social security payment in respect of SM but questions the level of financial contribution made by the parents. She states that when SM was 16 years of age, it was SM's understanding that she had never had a bank account and therefore wanted to open a new account upon receipt of the disability support pension. However, a bank official is said to have advised SM that she did have a bank account and that DM had withdrawn the funds from that account on SM's 16th birthday.
The LAC states that the absence of a decisionmaker for SM to deal with her care needs and the planning process for her living arrangements has proven problematic both in the past and currently. She states that SM's parents have had a significant lack of involvement and commitment to those needs. She states that the parents' relationships with key agencies have been tenuous and nonexistent for long periods as the parents would not respond to telephone calls or correspondence.
The LAC submits that an independent guardian be appointed in matters relating to SM's medical and healthcare needs as well as her living arrangements. She states that SM has expressed a clear wish to move to the new accommodation.
The LAC submits that an administration order is not required because SM can take advantage of the trust account arrangement offered by the new accommodation provider. Included in her submission is a document from the new accommodation provider which sets out the process and policies regarding how the new accommodation provider manages its residents' funds. The LAC states that under that system, SM could only withdraw money from her account if accompanied by a carer and there would be no opportunity to withdraw funds by way of an automatic teller machine or internet banking. Although a voluntary arrangement, the LAC submits that if the arrangement did not work in the best interests of SM, another application for an administration order could be made.
DM is of the view that the hospital and other agencies that have been part of the care arrangements for SM have not effectively supported her involvement in the decisionmaking. She states that the agencies have been doing things and making decisions without her being part of the process, and refers to the example of the opening of a bank account with which SM was assisted by the LAC.
DM states that she did not consent to the bladder surgery proposed by Dr V because of the risks involved. She said it was not emergency surgery and she had spoken to another doctor at the hospital about it. She also has spoken to nursing staff when required.
In reference to the report of JM that SM was not able to tell him about her pension income, DM states that she advised SM not to tell anyone about her money as it is a private matter.
DM states that she had a meeting with the LAC regarding the application for funding for the new accommodation but states that she has not been asked to have further involvement.
DM states that she is not in favour of the new accommodation because it is too difficult for family to visit, given the distance involved. She states that she has not been made aware of any alternative accommodation and accepts that the new accommodation might need to take place in the shortterm because SM has to leave LLC.
DM states that the family regularly speak with SM by Skype and visit her. She accepts the family cannot care for SM at home. DM says that she visits SM regularly at school and pays for some of her needs at the school.
DM proposes herself as guardian and administrator.
SM chose not to give evidence.
The decision of the Tribunal
The evidence demonstrates what appears to be a fundamental breakdown in the communication between the parents of SM, particularly her mother, DM, and the Complex Care Team at the hospital, LLC and the LAC. This has led to delays in decisionmaking and, it seems, to a form of de facto decision‑making by carers and allied health professionals associated with SM's care. This has been characterised by the LAC as a form of supported decisionmaking concerning SM, which I take to mean that there has been a conscious decision to include SM in the decision‑making that has occurred.
Whilst it is laudable and necessary to include SM in the decisionmaking around her accommodation and medical needs, this ultimately cannot be at the exclusion of a formal decision‑maker, given the evidence of SM's reduced capacity.
I accept the evidence that SM's family has been difficult to engage with on a consistent basis but I make no judgment as to why that may have occurred. It is important, however, in this critical time of SM's life when decisions need to be made about her transition to adult services and the change in her accommodation, that there be certainty in the decisionmaking. I am satisfied that this cannot occur, given the current animosity and apparent mistrust between the care providers and SM's family. The present circumstances have arisen over a long period of time and, it seems to me, are not open to an easy or quick resolution. However, decisions do need to be made for SM.
In all the circumstances, I am satisfied that DM is not currently suitable to be SM's guardian for the decisions that must be made around her transition to adult services. I have no doubt that SM's family love her dearly and want the best for her; however, unless the professionals associated with her care and SM's family can have some shared understanding about her needs and how they are to be achieved, SM will only be disadvantaged if the current situation is left unresolved.
It is for those reasons that I have decided to appoint the Public Advocate as the limited guardian for SM to make decisions about her accommodation, the services to which she should have access and to make her treatment decisions. This, I hope, will give SM the best opportunity to move from her living arrangements which she has effectively had for the whole of her life to date, to a new environment in the adult world.
I have decided that the order should be reviewed in two years to enable SM to further mature in her new living arrangements and, once done, to hopefully have a better understanding of the extent to which she can make her own decisions and also to give some time for the family to reengage with the care providers in the aim of having a decisionmaking role in the future.
I have decided not to appoint an administrator of the estate of SM at this time. I accept the submission of the LAC that SM should be given every opportunity to demonstrate her maturing abilities and also to be involved as closely as possible with her daily experiences, which include experiencing some money management. I am satisfied this can more likely be achieved if SM's income and bank funds are managed through the trust account arrangements, with appropriate safeguards, with the new accommodation provider than it could by appointing an administrator who is removed from her daily experience. I should say that if I were to appoint an administrator, I would have chosen the Public Trustee for the same reasons given for the appointment of the Public Advocate as guardian. In any case, any appointed administrator must be compatible with the appointed guardian and for that reason also, the mother could not have been appointed at this time.
In allowing a less restrictive alternative to the making of an administration order I am presupposing that SM will move to the new accommodation, as it seems to me that this is the only viable option currently available to her and which has been some years in the planning. I expect that, should the arrangement not operate in SM's best interests, an application for an administration order will again be made.
The application for an administration order is therefore dismissed.
Orders
In relation to matter GAA 4435 of 2015, which relates to guardianship, the Tribunal makes the following order:
The Tribunal declares that the represented person:
(a)is incapable of looking after her own health and safety;
(b)is unable to make reasonable judgments in respect of matters relating to her person;
(c)is in need of oversight, care or control in the interests of her own health and safety; and
(d)is in need of a guardian,
and the Tribunal orders that:
1.The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth, Western Australia 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 Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person; and
(d)To determine the services to which the represented person should have access.
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 20 November 2017.
In relation to matter GAA 4434 of 2015, which relates to administration, the Tribunal makes the following order:
1.The administration application is dismissed.
I certify that this and the preceding [77] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER