VN
[2006] WASAT 346
•27 NOVEMBER 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: VN [2006] WASAT 346
MEMBER: MS F CHILD (MEMBER)
HEARD: 13 MARCH 2006
26 APRIL 2006
DELIVERED : 27 NOVEMBER 2006
FILE NO/S: GAA 53 of 2005
BETWEEN: VN
Represented person
Catchwords:
Guardianship and administration - Review - Need for orders - Represented person suffering from mental illness - Incapable of making decisions about her person and about her estate - Spouse of represented person unsuitable to make decisions for her - No other person suitable or willing to be appointed - Public Advocate appointed - Directions not given to the guardian for contact as would fetter the discretion of the guardian - Need for independent financial decisionmaking - Public Trustee confirmed as plenary administrator
Legislation:
Guardian and Administration Act 1990 (WA), s 4, s 43(1)(b), s 51, s 64(1)
Result:
Public Advocate reappointed as limited guardian
Public Trustee confirmed as plenary administrator
Category: B
Representation:
Counsel:
Represented person : Self-represented
Solicitors:
Represented person : Self-represented
Case(s) referred to in decision(s):
VN (Unreported, Guardianship and Administration Board; No 930618; 26 May 1997)
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Tribunal reappointed the Public Advocate as limited guardian for a woman suffering from a long term mental illness. The woman was living in hostel care following her discharge from Graylands Hospital some years before. The guardian's functions included authority to decide accommodation and health care and the contact the woman should have with others and the extent of the contact.
The Tribunal considered that the woman needed an independent guardian as her care needs had not been met when she was in the care of her family in the past. There was a need, in the view of the Tribunal, that future decisions about where she should live and the extent of contact she should have with her family should be based on an assessment of her best interests, having regard to the current medical assessments. If a guardian were not appointed, the spouse of the woman would assume decision‑making authority for her and he had not always acted in her best interests in the past when her interests, both personal and financial had conflicted with his interests or wishes.
The Public Trustee was reappointed plenary administrator as there was an ongoing need for independent financial management of her estate again because the spouse was unable to differentiate between his interests and those of his wife.
The application
An application for review was lodged by VN (the represented person), with the assistance of the Mental Health Law Centre, on the 31 January 2005. The application was framed in the following terms:
"[the represented person] wishes to reside with her husband, and to have her husband informally assist her with her financial matters. This represents a less restrictive arrangement, within the meaning of the s 4(1) of the Guardianship and Administration Act, than the current plenary Guardianship and Administration order."
The application sought revocation of the guardian order or in the alternative, the appointment of the spouse as guardian and for revocation of the administration order.
The hearings
There was significant delay in bringing the application on for hearing. There were a number of reasons for this including a request for the hearing to be delayed by the solicitor, then acting for the represented person so that a further assessment regarding the proposal that the represented person live at home could be made and report provided to the Public Advocate, the absence of the spouse of the represented person overseas from March to November 2005 and the hospitalisation of the represented person in November 2005 because of a collapse at the nursing home and a deterioration in her physical health.
The application for review was first heard on 13 March 2006 and adjourned to allow the spouse of the represented person access to all the reports before the Tribunal including the report of the Public Advocate. This decision was taken so that the spouse had an opportunity to read the reports and to enable him to formulate submissions with the assistance of an interpreter and a solicitor from the Multicultural Services Centre.
The represented person attended the first hearing but was clearly distressed and unwilling to remain in the hearing room. Her attendance was not required by the Tribunal for the reconvened hearing. The question of her attendance was considered to be a matter for her plenary guardian.
The hearing was reconvened on 26 April 2006. The represented person did not attend. The spouse and the son of the represented person attended as did a friend of the family, a friend of the son, an interpreter for the spouse, a social worker from the Mental Health Services clinic who had conducted an assessment of the represented person at the request of the Public Advocate, the delegated guardian (the Deputy Public Advocate) and the former solicitor for the represented person. The solicitor advised the Tribunal that as the represented person could no longer instruct him, he could no longer represent her but attended to advise the Tribunal of her previously expressed wishes.
Orders under review
The orders under review in respect of the represented person are an order which appointed the Public Advocate as plenary guardian dated 1 May 2000 and an order dated 20 March 2001 which appoints the Public Trustee as plenary administrator of the estate of the represented person.
History of orders
The guardianship order dated 1 May 2000 confirmed an order dated 20 March 1998 by which the Public Advocate was appointed plenary guardian.
The administration order dated 20 March 2001 confirmed an order dated 2 July 1998 by which the Public Trustee was appointed plenary administrator.
The orders in place for the represented person are due for periodic review: the guardianship order in May 2005 and the administration order in March 2006.
The Public Trustee was first appointed administrator for the represented person in February 1994. The administration order has since been amended on review to vary and then to delete directions given to the administrator but the authority of the Public Trustee as plenary administrator has been maintained on each review.
The Public Advocate was first appointed as limited guardian in 1997 to advocate and make representations on behalf of the represented person for the purposes of having her discharged from the psychiatric hospital in which she resided. That order was later revoked on review as the represented person had been discharged to a psychiatric hostel. A further application for the appointment of a guardian was made in 1998 by staff of a Mental Health Services clinic and an order was made on 20 March 1998 for the appointment of the Public Advocate as plenary guardian. On review in 2000 that order was confirmed.
Capacity
There is no challenge to the medical evidence that the represented person has a chronic mental illness. There are numerous reports on the file going back to 1991 from clinics and hospitals under the auspices of Mental Health Services. The most recent report is from the represented person's general practitioner who has known her for seven years. He states she has a diagnosis of chronic paranoid schizophrenia and states she is incapable of decision‑making in the spheres of her personal health care, in regard to decisions about her living situation and in relation to her financial affairs. He says she has no insight regarding her need for medication, she requires prompting for the most basic of activities of daily living and that her thought disorder does not allow her to make rational decisions about her financial affairs. He also says that her prognosis is poor.
I find that the represented person is a person for whom orders can be made. She meets all of the criteria in s 43(1)(b) and s 64(1) of the Guardianship and Administration Act 1990 (WA) (the GA Act) for the making of a guardianship and an administration order.
Need for orders
When any order is reviewed, either the appointment of a guardian or an administrator, the Tribunal has to consider whether the represented person still needs those orders or whether her needs could be met in a less restrictive way.
The represented person is unable to act for herself in relation to her personal needs or in relation to the management of her estate. She is in need, in my view, of a guardian and an administrator. Because of her particular circumstances her needs cannot be met in a less restrictive way, other than the making of orders.
The current need for orders must be seen in the context of the history of this matter, which goes back to applications before the Guardianship and Administration Board, in 1993 made by staff at Graylands Hospital. The applications were prompted by the need to arrange for discharge of the represented person from Graylands, where she no longer needed to be for medical reasons. She was assessed as being able to live in a psychiatric hostel, but had been an in‑patient for an extended period of time. She was there, it is understood, because she had no access to financial resources.
In fact, she remained in hospital for a period much longer than she needed to be, because she could not access family resources to allow her to live in the community. The application at that time said that the spouse would not or could not contribute to her financial support, even the most basic personal items while she was in hospital.
The Public Trustee was appointed plenary administrator in February 1994, following that application. Following the appointment, the Public Trustee applied for a pension for the represented person, and a part pension was granted. A full pension was denied because of the assets of her spouse. The represented person remained in hospital. Following an application by the Public Advocate, the Public Advocate was appointed guardian to represent the represented person's interests in an attempt to have her discharged from Graylands Hospital. The represented person was discharged to a psychiatric lodge in 1997. She had been a patient at Graylands from March 1993.
When the guardianship order was made, orders were also made confirming the appointment of the Public Trustee as plenary administrator and directing the Public Trustee in relation to the management of the estate and a number of matters, including taking legal advice in relation to the obtaining of maintenance for the represented person. The Board published reasons for those decisions in Re VN (Unreported, Guardianship and Administration Board; No 930618; 26 May 1997).
The Public Trustee obtained orders in the Family Court of Western Australia, for spousal maintenance for the represented person in February 1998.
Following the discharge of the represented person from Graylands Hospital, the guardianship order was revoked in 1997.
In February 1998, an application was made by a staff member at a Mental Health clinic for the appointment of a guardian to deal with issues of contact. The application is said to have arisen from concerns regarding the care and supervision of the represented person when she went home for visits over the weekend. She was described as coming back to the hostel in a distressed state, without medication and to quote the report, "filthy and neglected".
The Public Advocate was appointed plenary guardian and that order was confirmed in 2000 and that is the order now under review.
Current need for an administrator
In respect of the question of the need for an administrator, the represented person cannot manage any aspect of her financial affairs. The Public Trustee's report prepared for the hearing, notes that the represented person's care and expenses exceed her income.
I consider given the history of this matter that she requires an independent administrator to advance her interests and to ensure she has access to financial resources.
This was why the Public Trustee was first appointed in 1994. Her spouse's attitude to his wife's financial situation, expressed in the hearing, remains substantially unchanged. The represented person continues to require independent management of her financial affairs, to ensure that her day to day needs are met and in particular to ensure that her hostel fees are paid.
Current need for a guardian
I consider that the represented person continues to need a guardian to decide where she should live, to make decisions about medical and other health care and to decide with whom she has contact.
The medical assessment, and this has been the position since 1994, is that the represented person requires hostel level care. She requires supervision of both her behaviours and her medical care, including her psychiatric care and the management of her diabetes. She is now, based on the accommodation review requested by the guardian, assessed as more dependent on others for her personal care. She is therefore vulnerable in a situation where those care needs are not met. That report refers to the concerns of the Manager of the hostel and the general practitioner regarding the level of care and monitoring she receives while in the care of her spouse.
Her spouse proposes, both in his written submission and in the hearing, that the represented person is cared for at home by him and their adult daughter who, he states in the hearing, now lives with him. The daughter did not attend the hearing and so could not give her views. However, I note the statements of the delegated guardian in this regard that the represented person has not lived at home for 13 years, is now assessed as more dependent for her care needs and that her daughter has expressed to the guardian reservations about her ability and willingness to care for her mother.
There has been concern about the level of personal care received by the represented person at home, going back to the earliest reports before the then Guardianship and Administration Board and before this Tribunal.
The guardian refers in her submission to a report to comments of a consultant psychiatrist from Graylands Hospital in 1997 that the represented person's "physical and mental health were not cared for by her family". The guardian also refers to a report dated 18 April 2000 from a doctor at a Mental Health clinic who indicated that it would be rare for a family to be able to provide the level of care required by the represented person and that three or four nights at home would be excessive and "probably harmful to her given the documented neglect of her needs by her husband". These concerns are reiterated in the recent reports before the Tribunal from the social worker and the general practitioner.
The spouse does not accept that the represented person requires hostel care with that level of supervision. He does not accept that there will be consequences for her if she does not receive her medication as has been the case while she has been in his care. He does not accept any of the concerns raised by the health professionals about the care of the represented person while she has been in the care of her family.
He describes the concerns expressed by the guardian and the social worker as "lies". He objects to the involvement of the Public Advocate and the Public Trustee in the affairs of the represented person as an intrusion on his family. He describes the delegated guardian as an "enemy".
The spouse raised concerns about the lack of privacy and supervision provided at the hostel for the represented person. Despite the very real limitations of the environment in which she lives including the lack of privacy and the restrictions of hostel living, I accept the submission of the guardian that the represented person's psychiatric condition has stabilised while living in hostel care.
Where the evidence of the guardian and the health care professionals conflicts with that of her spouse or her son, I prefer the evidence of the guardian and the health care professionals, especially in relation to the question of the level of care needed by the represented person, what arrangements are proposed for her care and what arrangements have been put in place for her care in the past.
The represented person is unable to make decisions about her own accommodation, her health care or about contact issues. She requires someone else to make them on her behalf. If the guardian is not reappointed, the default position would be that the spouse would make those decisions for her.
I consider that someone independent is required to assess the needs of the represented person and to make decisions based on her medical and other needs having regard to professional reports, as to her need for care and her best interests from time to time.
Wishes of the represented person
The wish of the represented person, as expressed by the solicitor on her behalf, based on his interviews with her before she made this application for review in January 2005, is that she return home to live with her spouse and, failing that, that she have more contact with him.
I accept the submission that it was the expressed wish of the represented person. This has been her consistent wish over time. I note that the Tribunal's obligation to have regard to her wishes under the principles set out in s 4 of the GA Act. However, those principles provide that the primary concern of the Tribunal, in dealing with proceedings commenced under this Act, is the best interests of the represented person. It is not in the represented person's best interests that the decisions about her person, her accommodation, her health care and contact be made by her spouse as would be the position if the orders sought were made.
Appropriate appointment of guardian
In my assessment, there is no one in the life of the represented person who is suitable to be appointed as her guardian and so the Tribunal must appoint the Public Advocate as guardian. I find that the spouse is not suitable to be the guardian because I consider on all of the evidence that he has shown an inability to appreciate the represented person's disability and subsequent vulnerability or to act in her best interests, where these conflict with his interests or wishes.
In relation to the proposal by the spouse that the delegated guardian be changed, the delegation by the Public Advocate of the functions to one of her staff is a matter for her.
Plenary or limited order
There is concern about the unwillingness or inability of the spouse or other members of the family to accept the authority of the Public Advocate or, as it must be said, the Public Trustee, in relation to the affairs of the represented person. For this reason I considered that it may be appropriate to reappoint the Public Advocate as plenary guardian.
There is a need for certainty and clarity in the interests of the represented person about who exercises authority in respect of the represented person and her estate. The Public Advocate's submission is that the order should be made a limited one. A limited order was also sought by the solicitor, who formerly represented the represented person and now attends the Tribunal to provide the information that he has of her expressed wishes.
The least restrictive order which meets the needs of the represented person is for a limited order in favour of the Public Advocate in the areas of health care decision‑making, accommodation and the contact she has with others.
In all the circumstances of the represented person and her estate, it is appropriate that the appointment of the Public Trustee as plenary administrator be confirmed.
Guardian not directed regarding the extent of contact
The solicitor requests specific orders to be made for contact in the same format as are made in the Family Court in relation to contact. That is, setting the time and frequency of contact between the represented person and her spouse.
It is not appropriate that the decisions about contact are made by the Tribunal, which is not able to assess on a regular basis, the possibly changing needs of the represented person, the possibly changing environment in which she may be placed and the other issues regarding her need for safety and care as a guardian would be able to do.
To give directions to the guardian in relation to the question of contact would unnecessarily fetter the discretion of the guardian to make decisions about contact, which she might need to make from time to time in the best interests of the represented person.
It is the view of the Tribunal, that it is the right of the represented person to have contact with her family and it is acknowledged that it is her wish that she have contact with her spouse. The delegated guardian referred, in her remarks in the hearing, to the commitment of the Public Advocate to maintain the relationship of the represented person with her family.
The guardian is well aware of the obligations under s 51 of the GA Act regarding the best interests of the represented person. The guardian is obliged to have regard to the needs of the represented person, including her need to maintain her relationships and her need for safety and security and that her welfare needs are met in any decision made in relation to contact.
In relation to the other submission made by the solicitor regarding the need for review of the psychiatric care of the represented person, it is accepted there needs to be specialist oversight of the represented person's chronic psychiatric illness and that she should have regular review of her psychiatric condition and treatment by a psychiatrist. The delegated guardian readily accepts the proposal put in this regard.
Period of the orders
In light of the medical report from the current treating doctor, that the represented person's prognosis is poor, that her condition is a static one and that past reports have said that recovery is unlikely, the appropriate term of the orders is for five years.
Orders
The formal order in relation to administration is:
1.On review of an administration order, dated 20 March 2001, that the order is confirmed in the following manner: that the Public Trustee of 565 Hay Street, Perth is appointed the plenary administrator, with that order to be reviewed on or before 26 April 2011.
2.On review of the guardianship order dated 1 May 2000, the order is revoked and a guardianship order in the following terms is substituted for it: that the Public Advocate of 30 Terrace Road, East Perth is appointed limited guardian to decide where the represented person is to live, to decide with whom the represented person is to live, to consent to any treatment or health care of the represented person, to determine what contact, if any, the represented person should have with others and the extent of that content.
3.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. The order will be reviewed on or before the 26 April 2011.
I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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