UK - [2008] WASAT 245

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: UK [2008] WASAT 245

MEMBER: MR M ALLEN (SENIOR MEMBER)

HEARD: 26 AUGUST 2008

DELIVERED : 22 OCTOBER 2008

FILE NO/S: GAA 1753 of 2008
GAA 1782 of 2008

BETWEEN: UK
Represented Person

Catchwords:

Guardianship and administration - Review of administration and guardianship orders - Represented person continuing to suffer from dementia with deteriorating mental and physical capabilities - Finding that represented person still suffers from decision-making disabilities, is incapable of looking after his own health and safety, and is in need of oversight care and control in the interests of his own health and safety - Consideration of whether guardian needs power to authorise the use of chemical or physical restraints

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 43(1), s 64(1), s 84, s 86, s 86(1), Div 3 Pt 5

Result:

Administration order is confirmed and guardianship order varied

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Tribunal reviewed an administration order made some years ago appointing the Public Trustee plenary administrator for an elderly man, UK. Since the time that order was made UK's mental disabilities have increased and he remains unable to manage his financial affairs. In the meantime, UK's need for an administrator has increased due to the sale of his former home and the need to invest the proceeds of that sale. The Tribunal confirmed the existing administration order in favour of the Public Trustee.
The Tribunal also reviewed an existing guardianship order in which the Public Advocate was appointed limited guardian for UK. The Tribunal was satisfied that the guardian no longer needed the powers to make decisions in relation to accommodation and services or the power to authorise the use of chemical restraints for UK, but was satisfied that there is now a need for the guardian to be able to authorise the use of physical restraints. The Tribunal considered that the types of physical restraints that were anticipated to be used were primarily for the physical safety of UK, but recognised that the boundary between protection of safety and physical restraint was unclear. For the avoidance of doubt, the guardian was given the power to authorise the use of physical restraints for UK.

Background

The represented person (UK) is a 69‑year‑old man. On 1 October 2002 the then Guardianship and Administration Board (Board) made an administration order under the Guardianship and Administration Act 1990 (WA) (GA Act) whereby the Public Trustee was appointed as the plenary administrator of UK's estate. That order was to be reviewed by 30 July 2007.
On 8 January 2004 the Board made a guardianship order in respect of UK whereby the Public Advocate was appointed as UK's limited guardian with the following functions:
(i)to decide where UK is to live, whether permanently or temporarily;
(ii)to decide with whom UK is to live;
(iii)subject to Div 3 of Pt 5 of the GA Act, to consent to any treatment or health care of UK;
(iv)to authorise any use of chemical restraint; and
(v)to determine the services to which UK should have access.
The guardianship order was to be reviewed by 8 January 2009.
The above orders were made by the Board on the basis of evidence that UK was suffering from dementia and was unable to make decisions about and manage his financial and personal affairs.
For reasons that are not clear the administration order was not reviewed pursuant to s 84 of the GA Act by the specified date. However, in July 2008, the Public Advocate applied to the Tribunal under s 86(1) of the GA Act for review of the guardianship order, and the opportunity was taken to review both orders at a hearing on 26 August 2008.
That hearing was attended by Ms M (an officer of the Public Advocate), and three staff members from Southern Cross Care, which operates the facility in which UK resides – Ms F (a carer), and Mr K and Ms W (both of whom are mental health nurses). All are involved in UK's care. UK did not attend the hearing, and I was advised that, although he was aware of the hearing, UK's mental state was now such that he would not understand the nature of the hearing and could make no contribution to it.
At the hearing Ms M, on behalf of the Public Advocate, sought review of the guardianship order so as to permit the guardian to consent to the use of physical restraints in UK's care.
At the conclusion of the hearing I ordered that the existing administration order should continue in its present terms and that the guardianship order should be varied by removing the guardian's functions to make decisions about where and with whom UK is to live; to authorise any use of chemical restraint; and to determine the services to which UK should have access. The guardian was to have, in future, the functions of consenting to any treatment or health care of UK; and to consent to the use of physical restraint in respect of UK, and to decide matters incidental thereto. Both orders are to be reviewed under s 84 of the GA Act by 26 August 2013.
At the time of making the above orders I stated briefly my reasons for doing so. Subsequently, the Public Advocate requested a written statement of reasons and this statement is provided in accordance with that request.

Consideration

In the review of an administration order the Tribunal must decide whether the existing order should continue to have effect in its original or amended form, or be discharged. Before an administration order can be made, or affirmed on review, the Tribunal must be satisfied that the preconditions for the making of such an order, as set out in s 64(1) of the GA Act, are made out. That provision relevantly provides that the Tribunal may appoint an administrator if it is satisfied that the person concerned:
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b)is in need of an administrator of his estate.
In the review of a guardianship order the Tribunal must be satisfied that the preconditions for the making of such an order, as set out in s 43(1) of the GA Act, continue to be made out. That provision relevantly provides that the Tribunal may appoint a guardian if it is satisfied that the person concerned:
(a)has attained 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 …
In exercising its powers under the provisions referred to above the Tribunal must observe the principles set out in s 4(2) of the GA Act, which require the Tribunal to have as its primary concern the best interests of UK; to presume that UK is capable of the matters referred to above until the contrary is proved to the Tribunal's satisfaction; to not make orders if the needs of UK could be met by other means less restrictive of his freedom of decision and action; to make any orders in terms that impose the least restrictions possible in the circumstances on UK's freedom of decision and action; and to, as far as possible, seek to ascertain the views and the wishes of UK.
As noted above, the original administration order and guardianship order were made on the basis of UK suffering from dementia. I was informed at the hearing that UK has lived at the current care facility since February 2005. There was no dispute amongst those present at the hearing that UK's mental state has deteriorated over the last few years. Mr M said that UK did not now know that the Public Trustee was managing his financial affairs and UK was quite incapable of managing any financial matter.
I was also advised that UK's physical state had deteriorated substantially and that he is now almost frozen in his wheelchair. If he is able to get out of his wheelchair, he is at risk of falling, and has done so on numerous occasions. A report dated 28 July 2008 by Ms O, who is the manager of the facility at which UK lives, records the many occasions on which UK had fallen and the injuries that he had sustained as a result.
On the information available to me, I am satisfied that UK continues to suffer from dementia and that as a consequence, he is unable to make reasonable judgments about his financial affairs. He is incapable of looking after his own health and safety or make reasonable judgments about his person and he is, generally, in need of oversight care and control in the interests of his own health and safety. UK is a person for whom administration and guardianship orders could be made or could continue.
In relation to whether there is any ongoing need for an administration order for UK, I was advised at the hearing that the Public Trustee pays all UK's expenses directly but no allowance is paid to UK because he is incapable of managing even a small amount of money. A report from the Public Trustee advised the Tribunal that, as a consequence of selling UK's previous home, the administrator is holding a considerable amount of money on behalf of UK, which money needs to be invested on his behalf. I am satisfied in the circumstances that UK has a continuing need for an administrator, and that need cannot be met by any less restrictive means.
As to whether there is any ongoing need for a guardianship order in its present or amended form, I was advised by Ms M that UK is living at the facility on a permanent basis and that all his services are provided by the facility. Accordingly, it is no longer necessary for the guardian to have power to make decisions about accommodation and services.
UK was born in a European country but has lived in Australia for many years. He has no relatives or friends in this country, but I was advised that he has a distant relative in Europe. In view of the fact that UK has a considerable amount of money held by the Public Trustee that will, presumably, eventually pass to the relative on UK's death, I raised the issue of whether there was any possibility of UK ever living outside Australia. I was informed by Ms M, and it was confirmed by the others present at the hearing, that any travel by UK would be extremely difficult to manage and that his relative in Europe had shown no interest in raising the subject of him living in that country. I am satisfied in the circumstances that UK will remain in Australia for the foreseeable future and that there is no need for any decision to be made about his accommodation at this time. In the unlikely event that the issue of UK moving to live outside Australia should ever arise, the guardian can then seek that power at the appropriate time.
In relation to the question of whether the guardian should have power to authorise the use of chemical or physical restraints for UK, Ms M informed me that although the guardian had been given the power to authorise the use of chemical restraints when the original guardianship order was made, in fact the guardian had never granted any such consent. UK had received various prescribed medications over the period of the guardianship order, some of which had the effect of calming his mood and anxiety, but Ms M said that these had always been regarded as being part of the treatment regime for UK's illness, and that the medication had never been administered purely for restraint purposes. It was now considered that UK was physically so limited that it was doubtful that he continued to need some of these medications. Nevertheless, because the medications were regarded as medical treatment rather than chemical restraint, Ms M considered that the guardian no longer needed powers to authorise such restraint.
I agree with that assessment and that function of the guardian should be removed.
However, as noted above, the main reason for the making of the application by the Public Advocate was to obtain authority to consent to the use of physical restraints for UK. Ms M said that it was considered by her, and by staff members of the facility, that UK's mobility is now so limited that he needs to spend most of his time in a wheelchair and that it is necessary to prevent him from trying to stand up and get out of the wheelchair because of the risk of falls. I was told that UK is quite happy in his wheelchair and rarely attempts to get up. The restraint that is proposed is a form of removable tabletop that can be fitted to the wheelchair and would have the effect of preventing UK attempting to stand up out of the wheelchair. Ms M said that it was also possible that at some time in the future some form of seatbelt might be needed on the wheelchair to hold UK in the wheelchair more firmly. In addition, there was also the possibility that rails might need to be placed on UK's bed to prevent him falling out of bed, as has happened in the past occasionally.
It is apparent from the above that UK is now in quite a frail state and that the types of measures referred to might well be seen as nothing more than safety measures designed to prevent him from injuring himself ‑ rather than being seen as measures intended principally to be physical restraint to prevent certain types of physical activity by UK. As was pointed out in discussion at the hearing, the boundary between purely safety measures and mechanical physical restraint will often be blurred and difficult to discern. On the evidence available, it seems to me that most or all of what is intended to be used by the facility could be seen as measures to protect UK's safety and not actions that are motivated by a desire to restrain him in a physical sense. In any event, I am satisfied that the measures proposed are all designed to protect UK from injury and are all measures that are in his best interests. Accordingly, for the avoidance of any doubt I consider that the guardian should have authority to consent to physical restraint of these types. I was also satisfied that the guardian should continue to have the power to consent to medical treatment generally on behalf of UK.

Orders

For the reasons above, I made the orders varying the guardianship order as set out in [9] above.

I certify that this and the preceding [24] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M ALLEN, SENIOR MEMBER