WP
[2008] WASAT 170
•30 JULY 2008
WP [2008] WASAT 170
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 170 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:417/2008 | 18 APRIL 2008 | |
| Coram: | MR J MANSVELD (MEMBER) | 30/07/08 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | The guardianship order is revoked The administration order is confirmed | ||
| B | |||
| PDF Version |
| Parties: | WP |
Catchwords: | Guardianship and Administration Review of a guardianship order Review of an administration order Need for a guardian Need for an administrator Guardianship order having little impact on the represented person's circumstances Accommodation options enhanced by the presence of an administrator because of the security of payment for the accommodation |
Legislation: | Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 64, s 84, s 90 State Administrative Tribunal Act 2004 (WA), s 78 |
Case References: | Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : WP [2008] WASAT 170 MEMBER : MR J MANSVELD (MEMBER) HEARD : 18 APRIL 2008 DELIVERED : 30 JULY 2008 FILE NO/S : GAA 417 of 2008
- GAA 418 of 2008
- Represented Person
Catchwords:
Guardianship and Administration - Review of a guardianship order - Review of an administration order - Need for a guardian - Need for an administrator - Guardianship order having little impact on the represented person's circumstances - Accommodation options enhanced by the presence of an administrator because of the security of payment for the accommodation
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 64, s 84, s 90
State Administrative Tribunal Act 2004 (WA), s 78
Result:
The guardianship order is revoked
The administration order is confirmed
(Page 2)
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 In October 2007, a guardian and administrator were appointed for WP, an Aboriginal man of 57 years of age.
2 The Public Advocate was appointed his limited guardian to decide his accommodation, the care services he might need from time to time and to consent to his treatment and health care.
3 The Public Trustee was appointed his plenary administrator.
4 The orders were made for six months to test whether they were providing any beneficial affects for WP.
5 At the hearing of the review of the orders in April 2008, the Public Advocate submitted that the guardianship order should be revoked. The Public Advocate stated that WP led a transient lifestyle and received support from his partner, JT. He had a respiratory condition exacerbated by the consumption of cigarettes and alcohol but when unwell would seek hospitalisation. He would often discharge himself from hospital against medical advice once he had started to improve.
6 The Public Advocate said that WP's particular lifestyle would likely continue until he became too unwell or he no longer received sufficient support.
7 The Tribunal found that WP was a person for whom a guardianship order could still be made but accepted the Public Advocate's submission that the order originally made had had little impact on WP's circumstances.
8 The Tribunal accepted that WP did not understand the role of a guardian but that if he did he would not want another person (except it would seem, JT) to make decisions for him.
9 The Tribunal decided to revoke the guardianship order.
10 The Tribunal decided to reappoint the Public Trustee as WP's plenary administrator.
11 WP had a significant debt to the aged care facility in which he had stayed for a period of time. Prior to the administration order he had not made any provision for its repayment. The debt was being repaid by his administrator.
(Page 4)
12 The Tribunal accepted that WP's chances of finding suitable accommodation would be enhanced by the presence of an administrator who could present a secure payment method to a potential accommodation provider. This was especially important in WP's case as the evidence showed he had a poor record of maintaining accommodation.
Background
13 These reasons relate to the decisions of the Tribunal in respect of a review of a guardianship order and an order for administration for WP.
14 WP is an aboriginal man aged 57 years.
15 The relevant legislation is the Guardianship and Administration Act 1990 (WA) (GA Act).
16 When orders for guardianship and administration are reviewed the Tribunal may confirm, amend or revoke the orders and make other orders in their place (s 90 of the GA Act).
17 The initial order for guardianship made on 18 October 2007, appointed the Public Advocate as WP's limited guardian with the functions of deciding his accommodation, the care services he might need from time to time and to consent to his treatment and health care.
18 The initial order for administration was also made on 18 October 2007 and appointed the Public Trustee as WP's plenary administrator.
19 Both orders were made for a period of six months and were reviewed on 18 April 2008 pursuant to s 84 of the GA Act.
20 The review hearing was attended by JM from the office of the Public Advocate. WP had been served with a notice of the hearing as had his partner, JT and a relative, MP, none of whom attended the hearing.
21 At the hearing on 18 April 2008, the Tribunal decided to revoke the guardianship order and to confirm the administration order for WP.
22 These reasons have been requested by the social work team at Royal Perth Hospital and are provided pursuant to s 78 of the State Administrative Tribunal Act2004 (WA).
(Page 5)
The original applications for guardianship and administration
23 Applications for guardianship and administration were initially made in August 2007 by the manager of the aged care facility in which WP was then residing.
24 The applications were heard by the Tribunal on 18 October 2007.
25 The Public Advocate in her report for the hearing of the guardianship and administration applications stated that WB had been admitted to hospital on 7 October 2007 and had discharged himself against medical advice on 12 October 2007.
26 The manager of the aged care facility had advised the Public Advocate that WP had also discharged himself from her facility and that his whereabouts was unknown.
27 The Tribunal had before it a number of medical and other reports.
28 A report from March 2007 by a consultant psychiatrist (when WP was in hospital) stated that WP probably had limited cerebral reserves as a result of his diabetes, head injury and excessive alcohol use. WP was likely to have executive dysfunction due to frontal lobe deficits and his aggressive outbursts were due to poor impulse control, disinhibition, poor motivation and lack of insight.
29 A report from August 2007 by a general practitioner diagnosed WP as suffering from chronic alcoholism. The general practitioner was unsure whether WP could make reasonable decisions about his personal health care, living situation and financial affairs but stated that WP seemed to be making unreasonable decisions in respect of his behaviour and consumption of alcohol and cigarettes.
30 A report from the manager of the aged care facility stated that WP had occasional short-term memory loss, occasional verbal and physical aggression and verbalised his wants and needs by constant calling out.
31 The Public Advocate stated in her report that WP and his partner JT had come to Perth from Kalgoorlie so that JT could receive dialysis treatment for renal failure. During his stay in Perth WP had numerous hospital admissions for respiratory problems (he was reported to require ongoing access to oxygen).
(Page 6)
32 The Public Advocate stated that JT generally assisted WP with his medical care and treatment decisions but this had become difficult due to her poor health.
33 As it transpired WP was placed in the aged care facility after a long hospital admission. He was approved by the relevant aged care assessment team to receive high level care.
34 WP was said to leave the aged care facility without his medications and oxygen and would not return for several days. JT told the Public Advocate that she would take WP out of the facility when he wanted to leave and take him to friends in the local area. When WP required medication or a meal JT would return him to the facility.
35 JT told the Public Advocate that she and WP wanted to return to Kalgoorlie and this was confirmed by WP when he said to the Public Advocate that he wanted to be in his "country" with his extended family. He reportedly said that he would live with relatives in Kalgoorlie.
36 WP told the Public Advocate that he could not understand why he was in the aged care facility. He believed he could make his own decisions and although he liked to consume alcohol he could look after himself. JT was concerned that the staff were trying to harm WP by administering medications that she and WP knew nothing about. She said that she would continue to support WP as she had done for many years.
37 MP (relative of WP), was present at the hearing and supported the return of WP to Kalgoorlie but was not sure whether any accommodation had been organised.
38 The manager of the aged care facility said at the hearing that WP owed $4,500 in care fees and $700 for medications. There had been a direct debit arrangement in place with his bank but that had been cancelled.
39 At the hearing the Tribunal decided to appoint the Public Advocate as the limited guardian for WP and the Public Trustee his plenary administrator. The orders were set for review in six months to test whether they were having any beneficial affect on WP's circumstances.
(Page 7)
The review of the orders for guardianship and administration
The Public Advocate's evidence and submissions
40 The Public Advocate provided a written report to the Tribunal for the review hearing. The report can be summarised as follows.
41 At the time of the Public Advocate's appointment in October 2007, WP had returned to Kalgoorlie with JT. It was reported that he was living with a sister.
42 In December 2007, WP was admitted to the Kalgoorlie Regional Hospital and discharged later that month to an aboriginal hostel with JT. The Public Advocate was informed in April 2008 that WP and JT had left the hostel and returned to Perth. The Public Advocate was unaware of WP's whereabouts at the time of the hearing.
43 During the period of the guardianship the Public Advocate's delegated guardian had spoken with members of WP's family, the local aboriginal medical service and with WP himself. The delegated guardian had attended a case conference at the Kalgoorlie Regional Hospital in December 2007.
44 The delegated guardian had spoken with the general practitioner, Dr JF, on 8 April 2008 who expressed the view that the administration order had been of benefit to WP but not so the guardianship order. WP persisted in doing what he wanted to do and this would continue for as long as JT was able to support him.
45 At the case conference at the Kalgoorlie Regional Hospital the social worker on the treating team had taken the view that WP remained capable of making his own decisions albeit that others would say he was not making appropriate decisions. The treating team's belief was that:
"… as [WP] is an Aboriginal man who maintains some vestige of a traditional life [,] from a cultural perspective the appointment of a guardian may be inappropriate. As [WP] would not perceive he needs a person to make decisions for him. [WP]'s own expectation of the guardian as expressed at their meeting in December 2007 was to get him a 'flat' and help him get some money." (From the report of the Public Advocate.)
46 WP was reported to continue to experience chest infections that were exacerbated by his homelessness, alcohol and cigarette consumption. He used an asthma "puffer" independently but was ineligible for the provision of oxygen wherever he was living because of the risks associated with his smoking. He accessed health services when he
(Page 8)
- thought it was required but had a history of poor compliance with medication.
47 WP continued to lead an itinerant lifestyle. Since her appointment as guardian, the Public Advocate had explored accommodation options in Kalgoorlie including public housing, aboriginal housing associations and residential care facilities. No accommodation service was willing to consider assisting WP because of his unacceptable behaviour.
48 WP also could not return to his aboriginal community because of his relationship with JT.
49 The Public Advocate concluded:
"It is the view [sic] of all concerned that [WP] will continue to be highly transient until either his health significantly deteriorates and he is no longer mobile, or his partner [JT] is no longer able to assist him. [WP] has been with his partner for many years and it is evident that she continues to support him.
As [WP] continues to make decisions on his own behalf, including where and with whom he will stay, which is consistent with his cultural way of life, the Public Advocate is of the view that a guardianship order is having little impact on his situation. This is due to the difficulty of locating and engaging [WP] and the lack of appropriate accommodation options for him."
The Royal Perth Hospital report of 18 April 2008
50 On the day of the review hearing the Tribunal received a report from a social worker at Royal Perth Hospital.
51 The report stated that WP had been admitted to the short stay medical unit on 15 April 2008 with "query seizures".
52 The social worker submitted that WP showed little insight into his medical condition, the care he required and the need for secure long term accommodation. WP would continue to live with others in the community and remain vulnerable without the availability of adequate and competent carers.
53 WP demonstrated very little consideration for budgeting his money or how to manage his finances responsibly.
54 The report stated that JT was unable to provide WP with stable accommodation and it appeared they were living with other renal patients in overcrowded conditions. WP was not able to provide any concrete plan for his accommodation and refused to consider nursing home care.
(Page 9)
55 The social worker stated that she requested the Public Advocate to contact WP's doctors to "… discuss the restrictions regarding a discharge against medical advice and if any, the use of chemical restraints."
56 At the review hearing JM, the representative of the Public Advocate said that the manager of guardianship at the Office of the Public Advocate had been contacted by Dr GP at Royal Perth Hospital in the late afternoon of 17 April 2008. The doctor was not aware that WP was the subject of an order for guardianship. JM stated:
"… I understand [WP] had been admitted a couple of days before and was on steroid and oxygen therapy and was compliant with that. He, however, I think, yesterday had felt much better and was asking to leave the hospital. Because we didn't have restraint authority there was no way that we could prevent him from leaving and in fact he left early this morning before even the doctors had done their ward round." (T:2)
57 JM further stated:
"… Dr GP… had said that in his view [WP] was clinically oriented. He knew where he was, he knew the required treatment, he was happy to comply with that treatment but his view was that as soon as he began to feel better he would discharge himself from hospital…that would appear to be his pattern…and it would appear that while he is compliant with antibiotics and steroid medication for a time he doesn't complete the course of any of those." (T:6)
The Public Trustee's report
58 As WP's administrator the Public Trustee has collected and managed his disability support pension.
59 The report of the Public Trustee dated 11 April 2008 stated that WP received an allowance of $200 each fortnight and that debt repayments were being made of $40 each fortnight. WP had debts of approximately $3,300 the bulk of which was for unpaid nursing home fees. At the time of the report WP was not in accommodation for which rent was payable. He had $713 in cash funds in the Public Trustee common fund.
60 The report also stated that WP would occasionally contact the Public Trustee requesting funds but would normally have JT speak for him.
(Page 10)
WP's capacity (evidence and submissions)
61 The Tribunal had the benefit of the medical and psychiatric assessments available for the original applications for guardianship and administration and the assessment of Dr GP as reported by JM of the Public Advocate (see above).
62 For the review hearing Dr JF (general practitioner) provided additional reports. She stated that she was unaware of any specific diagnosis for WP except for that of alcoholism which "… leads to short term impairment". She stated that any formal cognitive assessment would need a specific indigenous test.
63 Dr JF stated that WP attended the medical service frequently seeking hospital admission due to his homelessness (she stated that he often presented saying he was "dying" then settled quickly with reassurance).
64 Dr JF stated that WP had been evicted from public housing and nursing home(s) resulting in an exacerbation of his emphysema and that he demonstrated poor compliance with asthma prevention medications.
65 Dr JF stated WP's health and living conditions had been more stable in the past few months since the Public Trustee had managed his hostel fees. She stated that he had consistently shown in the past two years that he was unable to manage his own funds.
The Tribunal's decision on WP's capacity
Guardianship
66 Before the Tribunal can consider the need for a guardian for WP, it must be satisfied that he has attained the age of 18 years (s 43(1)(a) of the GA Act); is incapable of looking after his own health and safety; or is unable to make reasonable judgments in respect of matters relating to his person; or is in need of oversight care and control in the interests of his own health and safety or for the protection of others (s 43(1)(b)).
67 The evidence shows that WP is an alcoholic who suffers from a severe respiratory condition which is exacerbated by his continued consumption of cigarettes. A consultant psychiatrist assessed WP in March 2007 as probably now having limited cerebral reserves and suffering from executive dysfunction resulting in poor impulse control, disinhibition, poor motivation and lack of insight.
(Page 11)
68 WP's general practitioner is of the view that WP is unable to make reasonable decisions about his personal and financial life but states that any formal assessment should be one that is adapted for indigenous people.
69 The manager of the nursing home in which WP briefly resided states that he experienced occasional short term memory problems whilst in that facility.
70 Dr GP at Royal Perth Hospital reported to the Public Advocate as late as April 2008 that WP was clinically oriented during that hospital admission. He knew where he was, he knew the required treatment and he was happy to comply with that treatment.
71 The problem seems to be that WP discontinues with treatment against medical advice once his health improves after an acute episode and does not consistently engage in preventative measures, in particular for his respiratory condition. He does, however, present for treatment indicating some understanding of his situation when he becomes acutely unwell (although his general practitioner states that WP will present to her service asking to be hospitalised when he is homeless).
72 The provisions of s 43(1)(b) of the GA Act are broadly stated. The Tribunal can be satisfied on any of the three arms of that section to determine that WP is a person for whom a guardian can be appointed.
73 The Tribunal accepts that WP requires the support of his partner JT to manage his health and wellbeing to the extent that his circumstances allow (these being that he is an aboriginal man with significant health issues, living in poverty and who has exhausted most forms of accommodation except those provided by friends and relatives).
74 As a consequence, the Tribunal is satisfied that WP is in need of oversight, care or control in the interests of his own health and safety (s 43(1)(b)(iii)).
75 A further question for the Tribunal is whether WP can make reasonable judgments in respect of matters relating to his person and whether, apart from the need for oversight, he is able to look after his own health and safety (s 43(1)(b)(i) and (ii)).
76 The assessment of the consultant psychiatrist is that WP suffers a degree of brain damage which affects his executive functioning (although there is no evidence of formal testing which WP's general practitioner opines requires
(Page 12)
- an indigenous focus). In contrast the treating doctor at Royal Perth Hospital is reported to have assessed WP in April 2008 as clinically oriented, understanding the treatment required and consenting to it but later discontinuing the treatment against medical advice (at the time the doctor was not aware of the guardianship order).
77 The Tribunal is satisfied, on all the evidence, that the effects and consequences of WP's alcoholism prevent him from making reasonable judgments about his personal matters without appropriate support and that if he lacks such support he is unable to look after his own health and safety.
Administration
78 Before the Tribunal can appoint an administrator it must be satisfied that WP 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 is in need of an administrator (s 64(1)(a) and (b)).
79 Mental disability is defined to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia (s 3).
80 The Tribunal accepts that WP has suffered some brain damage as a result of his alcohol abuse and that this is an acquired brain injury for the purposes of the GA Act as it refers to a "mental disability".
81 WP did not pay his care fees when recently residing in the nursing home and a substantial debt remains. The report of the Public Trustee shows that on his appointment as administrator there were little or no funds in WP's bank account which demonstrates that WP did not make funds available for his day to day care needs during the period of his nursing home stay.
82 This the Tribunal accepts is representative of WP's inability to make reasonable judgments about his estate and finds that it is as a consequence of his mental disability.
The Tribunal's decision on the need for a guardian
83 The Tribunal, in deciding whether WP is in need of a guardian, must observe the principles set out in s 4 of the GA Act.
84 The relevant principles are:
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- • the primary concern of the Tribunal shall be the best interests of WP;
• a guardianship order shall not be made if the needs of WP could, in the opinion of the Tribunal, be met by other means less restrictive of WP's freedom of decision and action; and
• the Tribunal shall, as far as possible, seek to ascertain the views and wishes of WP expressed, in whatever manner, at the time, or gathered from WP's previous actions.
85 The evidence shows that WP leads an itinerant existence and that his particular lifestyle will at times result in admissions to hospital (which he appears to make himself) due to the acute exacerbation of his respiratory condition. The pattern appears to be that after some treatment he leaves hospital, usually it seems against medical advice.
86 The Tribunal observes that despite the reported regular hospital admissions of WP, it has not been the hospital medical teams that have applied for guardianship for him.
87 To the extent that he is able to choose how he lives, given his alcoholism and impaired decision making, WP actively rejects a more contained lifestyle as evidenced by discharging himself from the aged care facility where he recently resided and even while there, leaving the place for days at a time.
88 The Public Advocate has explored various accommodation options for WP without success and it appears that WP refuses any type of accommodation that has an element of containment within it, or his behaviour is such that the accommodation provider declines to provide a service.
89 It has not been explicitly put to the Tribunal that WP should be accommodated against his will in a secure facility but rather that he remains vulnerable without the availability of adequate and competent carers, which the Tribunal accepts.
90 WP receives a measure of support from JT, who is herself unwell. The evidence is that she wants to continue to support him as she has done for many years and it appears that he will go wherever she goes (between Kalgoorlie and Perth depending on JT's needs for dialysis).
(Page 14)
91 The Tribunal does not accept the Public Advocate's contention that the life lead by WP "is consistent with his cultural way of life", suggesting as it does that this reflects his itinerancy. The Tribunal does, however, accept the Public Advocate's submission that WP, as long as he continues to receive the support from JT and others (WT and JT seem to be able to secure temporary accommodation), then he will continue to lead the life that he does until he is no longer able to do so.
92 The Tribunal therefore accepts the submission of the Public Advocate that at this particular time there appears to be no benefit to WP of a guardianship order. Whilst the difficulty of carrying out the functions in a guardianship order is not of itself sufficient reason not to have an order in place, it seems in the case of WP, that the Public Advocate has for the most part been unable even to know where WP might be living from time to time.
93 The Tribunal accepts that WP does not understand the role of a guardian but that if he did he would not want another person (except it would seem, JT) to make decisions for him.
94 The Tribunal therefore revokes the guardianship order of 18 October 2007 but is mindful that should the circumstances of WP deteriorate, then another application for guardianship is likely.
The Tribunal's decision on the need for an administrator
95 The Tribunal has decided to confirm the order for administration and to reappoint the Public Trustee as WP's plenary administrator.
96 The Tribunal accepts the submission of Dr JF that for the period that WP and JT stayed in the aboriginal hostel in Kalgoorlie, the accommodation was stable in part at least because the administrator paid the relevant fees.
97 The Tribunal also accepts that WP's chances of finding suitable accommodation is enhanced by the presence of an administrator who can present a secure payment method to a potential accommodation provider. This is especially important in WP's case as the evidence shows he has a poor record in maintaining accommodation.
98 WP has a significant debt to the aged care facility in which he stayed for a period of time. During his stay at the facility, a direct debit arrangement for the payment of his fees was cancelled and it appears no other payment was otherwise made.
(Page 15)
99 WP made no provision for the debt as evidenced by the fact that when the Public Trustee was first appointed as his administrator he had little or no funds in his bank account.
100 The Tribunal is satisfied that without an administrator, WP would not be able to meet his lawful obligation to repay the debt.
101 The Tribunal is satisfied that were WP able to decide the matter, he would not wish for an administrator to be appointed to control and manage his pension income. On balance, however, the Tribunal finds that to ensure the pension is used to meet WP's needs and obligations, the administration order should continue.
Orders
Guardianship
1. The order of 18 October 2007 is revoked.
Administration
1. The order of 18 October 2007 appointing the Public Trustee as WP's plenary administrator is confirmed.
2. The order is set for review by 18 April 2013.
I certify that this and the preceding [101] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER
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