T
[2018] WASAT 128
•21 MARCH 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: T [2018] WASAT 128
MEMBER: MS H LESLIE (MEMBER)
HEARD: 21 MARCH 2018
DELIVERED : 21 MARCH 2018
PUBLISHED : 23 NOVEMBER 2018
FILE NO/S: GAA 256 of 2018
T
Represented Person
Catchwords:
Guardianship - Criteria - Capacity - Capability - Need for oversight care or control - Presumption of capacity
Legislation:
Family Court Act 1997 (WA), s 45
Guardianship and Administration Act 1990 (WA), s 4, s 40(1), s 43, s 43(1), s 43(1)(b), s 43(1)(c), s 64(1)(a)
Result:
Application granted
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
K [2018] WASAT 27
KRM [2017] WASAT 135
LGW [2004] WAGAB 4
Ms G [2017] WASAT 108
Public Advocate and CEF [2010] WASAT 54
Public Trustee v Blackwood (1998) 8 Tas R 256
REASONS FOR DECISION OF THE TRIBUNAL:
The application
The application before the Tribunal is an application under s 40(1) of the Guardianship and Administration Act 1990 (WA) (the GA Act) for a guardianship order in respect of the proposed represented person (T).
T is a 59-year-old woman who suffers from multiple sclerosis (MS) diagnosed in about 1998. As well as the physical deterioration caused by the illness, T's cognition and function is now impacted by the demyelination in her frontal lobes and other effects in her brain caused by the illness.
Jurisdiction
Section 43(1) of the GA Act provides that the Tribunal may make a guardianship order in respect of a person who:
(a)has attainted the age of 18 years;
(b)is
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and
(c)is in need of a guardian[.]
Section 4 of the GA Act provides as follows:
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)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.
(3)Every person shall be presumed to be capable of
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)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.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) 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.
History of the orders/applications
On 13 February 2006, being satisfied that the effects of her MS prevented T from making reasonable judgments about her financial affairs, the Tribunal appointed T's friend, co-resident and carer JH as her plenary administrator for five years. On 7 December 2007, that order was reviewed upon request after JH suffered a stroke. The Public Trustee was substituted as administrator for five years.
On 12 December 2008, following an application by the coordinator of T's local support agency, the Tribunal appointed the Public Advocate as limited guardian for five years to make decisions about T's accommodation, her medical treatment, her support services and matters of contact.
These orders were made on the basis that T met the criteria for guardianship set out in s 43(1)(b)(iii) of the GA Act only; in other words, that T was in need of oversight, care and control in the interests of her own health and safety. The Tribunal was not satisfied that the criteria set out in s 43(1)(b)(i) or (ii) were met. At the time, T was in hospital due to concerns regarding the suitability of her then accommodation and home support services and concerns that she was at risk in terms of her health and vulnerability were she to return to the community.
Upon review, on 4 January 2013, the Tribunal continued the appointment of the Public Trustee as administrator for a further five years, but revoked the guardianship order on the basis that less restrictive alternatives for decisionmaking existed. At the time of the review, the Tribunal accepted the Public Advocate's submission that T's situation had improved substantially since the making of the guardianship order; that the need for an order had substantially changed; and further, that there was insufficient evidence in the circumstances to suggest that T met any of the criteria under s 43(1)(b) of the GA Act. The Tribunal was satisfied that sufficient supports were available to her in the community to ensure her health and safety and provide decisionmaking support to her less restrictively.
Upon review, on 11 January 2018, the Tribunal confirmed the appointment of the Public Trustee as administrator for a further five years. Following evidence at that time about matters correctly the provenance of a guardianship application, VH the coordinator of T's local support agency, the Community Living Association (CLA), subsequently made application for a guardianship order.
That application was heard on 21 March 2018 at which time the Tribunal appointed the Public Advocate as limited guardian for five years to make decisions about T's care and accommodation, her medical treatment and her support services. The Tribunal indicated that full written reasons would subsequently be provided. The following constitutes those reasons.
The hearing
T and VH participated in the hearing by video link from Albany. Both gave evidence. The Public Advocate's representative OS attended the hearing in person and made submissions.
The evidence
The Tribunal had before it a number of reports concerning T's health from earlier files together with an update medical report from Dr S-K, one of the doctors at the general practice surgery in Albany attended by T and an update report from VH.
Relevantly, in her report Dr S-K states that the extent of any mental disability has not been recently assessed but opines that she is unsure about T's capacity to make reasonable decisions in relation to medical treatment and procedures, or in relation to the identifying and securing of appropriate support services (commenting in relation to medical treatments matters that it is 'difficult to assess if [T] is fully aware of the consequences of her own decisions'). In the report she further opines that T is incapable of identifying and securing housing that is appropriate to her care and support needs, and is incapable of executing an enduring power of attorney or enduring power of guardianship; also that T has difficulty in communicating; that speech is difficult because of T's MS.
VH's report in her capacity as the coordinator of CLA may be relevantly summarised as follows:
1)T lives in a three bedroom public housing property which she shares with another person who is supported by CLA.
2)CLA provides T with full support (24 hours a day, seven days a week) to assist with meeting T's personal care needs, household maintenance and community access.
3)The MS Society provides T with therapeutic support, access to physiotherapy and occupational therapy services.
4)Silver Chain provide T with medical assistance around managing her catheter.
5)T has a sister who lives in another country town in Western Australia and visits about twice a year. T has phone contact with her sister on a regular basis. She has a friend who visits her about once every six weeks.
6)T's medical condition is one of primary progressive MS with resulting dysphagia, reduced mobility (T now requires a wheelchair), poor concentration, comprehension and memory.
7)T was admitted to hospital twice in November 2017 with severe urinary tract infections.
8)T's finances are managed by the Public Trustee following a determination by the Tribunal that she had lost the capacity to look after her financial affairs by reason of the disabling effect of her MS on her mental abilities. T is provided with an allocated amount for her weekly spending for food and personal expenses. T requires support from her support workers to manage and monitor this money. Without support, T would struggle to manage her day-to-day budget and meet her needs. T continues to need the current level of protection from an administration order.
9)Without support and guidance, T would not follow the advice of her treating medical professionals. T has an impulsive nature and will often engage in risk-taking behaviours. Examples of this include: T eating foods that are unsuited to her needs, despite having dysphagia and being at high risk of choking; and T will also attempt to walk, with an apparent lack of awareness of her poor mobility - T has had a number of falls due to this.
10)T appears to have a limited understanding of her condition. T is fairly accepting of the support services she receives.
11)T's housing is close to shops and services. As her MS progresses, alternative housing may need to be considered in order to meet her mobility needs.
12)T does not appear to have a complete appreciation of the severity of her medical condition. Support workers require constant vigilance to ensure she is safe as T continually overestimates her capacities in a variety of areas, for example, walking/mobility, and eating/swallowing
13)In response to a specific question as to whether or not T's health and safety is at risk, the report states: 'CLA do not hold any immediate concerns for [T's] safety. [T] receives 24/7 support; her tenancy is secure; her health team review her condition regularly; her finances are currently managed by the Public Trustee. The only concern we have is for her medical condition which continues to progress. Her repeated UTIs [urinary tract infections] (antibiotic resistant) places her at risk of other serious medical complications. [T] has had two hospitalisations over the past few months. CLA continue to closely monitored T's health'.
VH, although now and for approximately the last 12 months, the coordinator of CLA, was for some seven years one of T's regular main carers and knows her well. She stated that she still does some 'hands on caring' but not so much now. She described T as having quite a large team of carers within which there are a couple of 'regular carers' who are, for example, more familiar with her medical needs.
At the hearing VH gave evidence that T's health has deteriorated as her MS has progressed; that the condition had plateaued some time ago but that in the last year or two, there had been more 'downward progress'. She described days when T has no energy and cannot get up very well by herself. The prediction is that this will happen a lot more in the future although the timing is unclear.
In relation to T's general care, the applicant expressed the view that, by reason of the effects of her MS, T does not always understand what is being put to her, her situation and, in particular, the risks associated with particular activity or behaviour. Two examples were given. Firstly, in relation to her lack of understanding of her mobility limitations. VH gave evidence that T's MS means that she can no longer walk unaided and T's failure to use a walking frame at all times has caused many falls; that she needs close supervision because she 'just gets up and goes'. Secondly, VH gave evidence of the necessary restrictions on T's eating behaviours, stating that the choking risk from T's MSrelated dysphagia is very real as she persists, particularly when out in the community, in eating food not appropriately prepared for her and that this has to be very carefully policed as T loves food and 'she will grab anything and eat it'.
The applicant gave evidence that T cannot go out on her own; that she must have a carer with her at all times and that the carer needs to be vigilant because of these risks.
The applicant also gave evidence that more complex medical decisions are needing to be made about T's care, decisions that are beyond the scope of what is appropriate for CLA to facilitate given the reservations that its staff have about T's capacity to fully understand such issues. Examples given included the future management of the serious antibiotic resistant urinary tract infections now being contracted by T from time to time and requiring inpatient care. Associated with this there is the need for the progressing of a decision that has been urged upon T for some time, namely, the insertion of and management of, an indwelling catheter in the hope of limiting such infections in the future. Having resisted such an option for some time, it seems that T is now more open to the procedure being done.
In her evidence, the applicant emphasised her belief that these matters arise not just because T has a different view in a particular situation, but rather that, because of the impact of her MS on her mental function, she does not understand.
The Tribunal notes from the earlier records that the medical history records that, premorbidly, T was an intelligent and able young woman. It is noted that Dr JL, physician, in his report in 2005 to the Tribunal stated that 'T can be quite inappropriate in her behaviour with loss of insight and poor executive functioning' (Tribunal emphasis). The Tribunal also notes that Dr MM, psychiatrist, in her report in 2005 to the Tribunal stated that T's frontal lobe testing results were 'very patchy' and flagged the fact that 'full guardianship' may be needed in the future.
At the hearing T gave evidence speaking slowly and with some effort. She acknowledged the walking and eating behaviours referred to. She supported having a guardian. She stated she was aware that as her MS progresses 'it will get worse' and that she would 'rather have someone who can make my decisions for me'. She stated she was 'happy enough' where she is at the moment with her little dog Buddy and her housemate, J. She stated in relation to medical treatment that conversations with her doctor were 'easy [to understand] if you know what she is talking about' (Tribunal emphasis). She appeared content and was observed to have what appeared to be a trusting and comfortable relationship with VH. She was welcoming of support for the future.
The Public Advocate's position
At the hearing OS submitted that the lay evidence of VH supported the proposition that in relation to decisions of any complexity regarding medical treatment and care, T's decisionmaking ability is questionable. OS further submitted that, although the medical evidence indicated that T was incapable of making reasonable judgments in relation to her accommodation options, the medical evidence regarding T's capacity to make reasonable judgments about medical treatment decisions and service provision decisions was unclear. She agreed that there was insufficient evidence to establish to the requisite degree of proof that the presumptions of capacity and capability set out in s 4(3)(a) and (b) of the GA Act were displaced so as to enable the Tribunal to be satisfied that the criteria set out in s 43(1)(b)(i) and (ii) of the GA Act were satisfied. However, she submitted that T was a person for whom a guardianship order could be made under s 43(1)(b)(iii) on the strength of the report and evidence of the applicant. She submitted medical matters and behaviours such as those identified by the applicant, if not monitored closely, put T at high risk of injury. She stated that the Public Advocate supported the making of a guardianship order based on s 43(1)(b)(iii) alone.
Consideration the Law
As appears from the Tribunal's decisions in Public Advocate and CEF [2010] WASAT 54 (CEF), K [2018] WASAT 27 (which applied CEF) and Ms G [2017] WASAT 108 (Ms G), and notwithstanding the Tribunal's decision in the case of KRM [2017] WASAT 135, with which I respectfully disagree, the legislation allows for the making of a guardianship order for a 'capable' person where the criteria set out in s 43(1)(b)(i) or s 43(1)(b)(iii) of the GA Act are met, that is to say, where a person is able to make reasonable judgments but is either incapable of looking after his or her own health and safety, or is in need of oversight, care or control in the interests of his or her own health and safety or for the protection of others. Put another way, the cases are authority for the proposition that a person may qualify for a guardianship order where his or her health and safety is at risk notwithstanding that he or she has the capacity to make reasonable judgments him or herself in respect of matters relating to his or her person.
This reflects the protective nature of guardianship as laid down in the 2004 decision of the then Guardianship and Administration Board (Board) in LGW [2004] WAGAB 4 (LGW). In LGW, the Board provides a comprehensive analysis of the role and scope of guardianship by reference to s 45 of the Family Court Act 1997 (WA). The Tribunal referred to Dickey, Family Law (1997 3rd Ed) and emphasised the learned author's statement that 'even under the narrowest view of guardianship, the concept signifies duties to the [person] ab extra, that is, a warding off, the defence, protection and guarding of the [person] or his property from danger, harm or loss that may inure from without'.
In LGW at [24] and [25], citing the Tasmanian decision in Public Trustee v Blackwood (1998) 8 Tas R 256, the Board provides an analysis of the two different ways in which the notion of 'need' is used under the GA Act in s 43(1)(c) and in s 4(4) and refers to the two-stage process that must be gone through before making an order. In fact, there is a third use of the word 'need' in the GA Act which, in the context of the decision about whether a guardianship order should be made or not, chronologically comes before both of the aforementioned. It appears in s 43(1)(b)(iii) of the GA Act. As part of its determination of whether or not the proposed represented person meets the criteria for the making of a guardianship order, the Tribunal must determine whether there is a need for oversight, care or control of the proposed represented person in the interests of their own health and safety, not as part of its determination of need under s 43(1)(c) or s 4(4) of the GA Act, but separately, as part of its consideration of s 43(1)(b) criteria.
As in relation to s 64(1)(a), s 43(1)(b) of the GA Act is commonly referred to as 'the capacity test'. This use of language is to some extent misleading as the proposed represented person's capacity to make his or her own reasonable judgments (which is the common understanding of the use of the word 'capacity') is only relevant in one of the three criteria laid down in s 43(1)(b) of the GA Act. The other two relate not to the presence or absence of judgment or 'capacity' in the sense used above, but to the presence or absence of risk to health and safety and the capability (that is, ability or inability) of the proposed represented person to adequately act and follow through to ensure his or her own health and safety without oversight or supervision (in the form of some sort of care or control).
In KLM the Tribunal, at [17], recast the so-called 'presumption of capacity' as 'the presumption of capability' and went on to state that the presumption 'must be rebutted in order for the Tribunal to consider the subsequent question as to whether the represented person or proposed represented person needs a guardian or an administrator and whether there are less restrictive options available to them', then referring to s 4(3) to (5) of the GA Act.
The context of the statement just referred to supports an interpretation of the word 'needs' where it appears in the statement as referring to 'need' in the sense used in s 43(1)(c) of the GA Act.
With respect, in my view, prior to considering the question of the need in the s 43(1)(c) sense, and as part of its consideration of the criteria in s 43(1)(b) of the GA Act (commonly though perhaps misleadingly referred to as 'the capacity test'), the Tribunal must consider, separate to the notion of capacity and capability in subsections (i) and (ii), the question of need as set out in subsection (iii).
Whilst acknowledging that the statement quoted above from KLM about 'capability' takes account of s 43(1)(b)(i) (and perhaps (ii)) and s 4(3)(a) (and perhaps (b)) of the GA Act, with respect and for the reasons set out in Ms G, it is my view that such a construction fails to take account of the different language of s 43(1)(b)(iii) and the absence of a parallel provision to that subsection in s 4(3) (as expanded upon in Ms G).
In the view of the Tribunal, not only does subsection (1)(b)(iii) enable a guardianship order to be made in appropriate circumstances for a person who has capacity in the sense that he or she has the ability to make reasonable judgments in relation to matters relating to his or her person, it also allows a guardianship order to be made in appropriate circumstances for a person who has the capability in the sense that he or she has the ability to act and follow through to look after his or her own health and safety. The circumstances in which it is appropriate for such an order to be made are where the Tribunal is satisfied that the person is in need of oversight, care or control in the interests of his or her own health and safety or for the protection of others notwithstanding his or her capability under subsection (i) or his or her capacity laid out in the GA Act under subsection(ii).
It is, with respect, not a question of 'making the statutory presumption of capability redundant' as suggested KLM at [20]. Rather, it is a question of recognising that Parliament has left scope, one must assume deliberately, in the exercising of the protective function of the legislation, for the making of guardianship orders in the rare circumstance where oversight, care or control is needed to protect health and safety, notwithstanding that the presumptions of capacity and capability have been not been displaced.
Clearly where a person has the capacity and/or capability referred to in subsections (i) and (ii), there will need to be credible evidence demonstrating the need for oversight, care or control and the basis of the conclusion that that need exists. Particularly where the evidence has failed to establish on the balance of probabilities that a person does not have the capability to look after their own health and safety, that is, has failed to displace the presumption of capability there would need to be clear and cogent evidence supporting the need for oversight, care or control in the interests of health and safety to justify a guardianship order.
There is a common maxim in the jurisdiction that people have a right to make bad or unwise decisions. Competent people make them all the time. It will be for the Tribunal in each instance to ensure that any order under subsection (iii) is appropriate and that the subsection is not simply being used in an attempt to override what are capably made albeit bad or unwise decisions with which others engaged with or close to the proposed represented person simply disagree.
As set out in KLM at [17], the standard of proof required is high, being the so-called 'Briginshaw' standard (refer to Briginshaw v Briginshaw (1938) 60 CLR 336), that is, the Tribunal needs to be satisfied both of the need for oversight care and control, and then also of the need for an order, on the balance of probabilities but having regard to the nature and seriousness of the potentially affected rights.
Consideration the evidence
On the basis of the evidence presented, which is not the subject of any substantial challenge, the Tribunal agrees with the submission articulated by OS, namely that, as was found for a period in the past, T meets the criteria for the making of a guardianship order under subsection (1)(b)(iii) of the GA Act although not under subsections(1)(b)(i) or (ii). The Tribunal takes the view that given the risks that have been identified in the evidence which, the Tribunal accepts, are significant risks to health and safety, there is a need for oversight, care and control of T, in her best interests.
The Tribunal accepts that there is a current need for independent oversight of T's care planning at home and her medical care and treatment. The Tribunal also accepts that in the not-too-distant future as T's condition deteriorates, as it inevitably and inexorably will, it is likely that alternatives to her current housing, likely supported nursing home accommodation, will be needed. T suffers from a complex medical condition which has and will continue to have a significant impact on her health and safety. It is beginning to have an impact, albeit limited at this stage, on her capacity. In the future, that impact will inevitably increase ultimately robbing her of capacity entirely. It is desirable that appropriate planning be undertaken for the future at a time when T can still have some input into that planning.
In the Tribunal's view, a limited guardianship order to cover those areas, namely accommodation, care supports and services and medical care and treatment is required, so as to ensure that nothing is overlooked for the present or the future in T's best interests.
In relation to the question of a less restrictive alternative, the restrictions and limitations identified in the evidence as needing to be implemented in order to keep T safe and healthy include significant 'controls' which represent a significant erosion of her independence, her freedom of choice and liberty. As her disease progresses, further restrictions and limitations may indeed be required. It is sadly the case that as her disease progresses, T's capacity to make choices will deteriorate as will her ability to communicate in order to advocate for herself and to articulate her views and wishes, and her vulnerability will increase.
Whilst in no way implying criticism of CLA which, on any measure, has provided excellent decision-making support and care for T to this point, as has been found by the Tribunal on many occasions previously (and as is acknowledged by the applicant), it is preferable that decisions about such matters for such a vulnerable person are made by somebody independent of the service provider engaged to care for T and in a climate uncomplicated by such matters as the needs of other patients, staffing and funding issues and pressures, so as to ensure that the decisions about T's accommodation, care and medical treatment are made entirely on the basis of what is in T's best interests.
The Tribunal is required under the GA Act to take account of T's wishes. It is noted that T is content in her current situation and is in agreement with a guardian being appointed to make decisions in these areas on her behalf for the future. She appeared to the Tribunal to have good insight into the fact that her health and capacity will inevitably deteriorate over time and bravely acknowledged the same to the Tribunal.
Although it is acknowledged that T continues to have some contact with her sister, no family member or other member of the community has put themselves forward as a potential guardian. The only option available to the Tribunal therefore is to appoint the Public Advocate as guardian of last resort.
Orders
The Tribunal declares that the represented person T:
(a)is in need of oversight, care or control in the interests of her own health and safety; and
(b)is in need of a guardian.
and the Tribunal orders that:
1.The Public Advocate of David Malcolm Justice Centre, level 23, 28 Barrack Street 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 division three part five of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person;
(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.The guardianship order is to be reviewed by 11 January 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS H LESLIE, MEMBER
23 NOVEMBER 2018
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