A
[2018] WASAT 33
•10 MAY 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
CITATION: A [2018] WASAT 33
MEMBER: MS H LESLIE (MEMBER)
HEARD: 3 MAY 2018
DELIVERED : 4 MAY 2018
PUBLISHED : 10 MAY 2018
FILE NO/S: GAA 1382 of 2018
MATTER: A
Represented Person
Catchwords:
Guardianship - Assessment of best interests - Reasonableness - Best interests
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 4(3), s 4(4), s 4(7), s 43(1)(b), s 51(1), s 51(2), s 110ZD, Div 3 Pt 5
Result:
Limited guardian appointed for 2 years
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR THE DECISION OF THE TRIBUNAL:
The Application
The application is made by the two sons J and S and a daughterinlaw, SS of the proposed represented person (PRP) A, seeking the appointment of the Public Advocate as an independent guardian for A. The application is opposed by A's husband R who puts himself forward as decisionmaker for his wife.
At the hearing, the Tribunal heard evidence from R, J, S and the Public Advocate's representative.
Relevant legislation
The primary concern of the Tribunal is the best interests of A: s 4(2) of the Guardianship and Administration Act 1990 (WA) (GA Act).
In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of A as expressed, in whatever manner, at the time, or as gathered from A's previous actions: s 4(7) of the GA Act.
A is presumed to be capable of looking after her own health and safety; making reasonable judgments in respect of matters relating to her person; managing her own affairs; and making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act.
Under s 43(1)(b) of the GA Act the Tribunal cannot consider appointing a guardian for A unless it is satisfied on the evidence that she is incapable of looking after her own health and safety; is unable to make reasonable judgments in respect of matters relating to her person; or is in need of oversight care or control in the interests of her own health and safety or for the protection of others.
Section 51(1) of the GA Act provides that:
Subject to any direction of the State Administrative Tribunal, a guardian shall act according to his opinion of the best interests of the represented person. [Tribunal emphasis]
Section 51 (2) of the GA Act, provides, inter alia, that:
Without limiting the generality of subsection (1), a guardian acts in the best interests of a represented person if he acts as far as possible
…
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
…
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions; …
Capacity
A is a 79-year-old woman. It is not in dispute that she suffers from advanced Alzheimer's disease and that she is a person for whom a guardianship order could be made. Having considered the medical evidence available to the Tribunal which is very clear and was not contested and which the Tribunal accepts, the Tribunal so finds.
The issues for the Tribunal were whether or not there was a need for a guardianship order to be made and, if so, the functions that should be given to a guardian and who that guardian might be.
A's wishes
A did not participate in the hearing given the degree of her illness. It is not in issue that A wishes to remain living at home with R and that any other outcome would likely cause extreme distress and upset to her. The Public Advocate endeavoured to tease out in a more detailed way A's views but was unable to report anything of substance to the Tribunal given A's illness.
Need
To this point, in the period since A's capacity has become compromised, R as her next of kin has made all of the significant personal decisions for her.
A resides on a 30 acre rural property (the family property) with her husband. The couple have lived at the property for 35 years. They have two married sons who live in suburbs nearby. Sadly, their daughter passed away recently.
They have been married for over 60 years. There is no challenge to the fact that R is devoted to A. He is retired and has been her principal carer in recent years with the assistance of a home care package from the care agency Avivo which he has been able to arrange. Since A's discharge from hospital on 26 April 2016, the care hours provided by Avivo have been increased. The timetable of care is presently three hours each alternate day, that is, Mondays Wednesdays and Fridays plus three hours on the weekend usually Saturday. R oversees all medical matters for A which he can do as her next of kin under s 110ZD of the GA Act.
Subject to two matters to be referred to, namely hospital discharge circumstances and the oversight of wandering behaviour, the quality of care being received by A at home and the decision-making for her regarding this is not in question.
The legislation mandates that the Tribunal only make a guardianship order in circumstances where it is necessary to do so. If there is in existence a so-called less restrictive alternative to a formal guardianship order that can allow appropriate decision-making in the person's best interests, then the Tribunal should not make a guardianship order (s 4(4) of the GA Act).
So, in determining whether there is a need for a guardianship order, the Tribunal must determine whether a suitable less restrictive alternative to a guardianship order is for R to continue informally to make all of the significant personal decisions for A. This requires an examination of the decision-making by him to this point to see whether his decisionmaking has been in her best interests.
It is not seriously suggested by anybody that R has other than A's best interests at heart. To that extent there is no challenge to his intentions and to his motivation. The issue is whether or not the decisions that he is making are, objectively, in A's best interests. There are two areas that J and S raise as being of concern to them.
A's wandering behaviour
The principle concern raised in the guardianship application arises out of A's wandering behaviour. The house on the family property is able to be locked and so there is no issue about night time security. However, during the day, particularly as a response to conflict or mood change, A likes to go for long walks alone on the property and in the adjacent area. She has done so for many years. It is said that currently she will often walk for as much as 4 to 5 hours each day. There is no challenge to the fact that this is one of the few pleasures left to A. R sometimes walks with A but is not always able to. It is common ground that A mostly walks on the property, using the firebreaks and other tracks cut through the bush, but that she is also able to climb the fences and will often walk in forest areas or on neighbouring properties. Some of the ground is steep and rocky, some of it is bushland forest and some of it is treed pastureland. A is usually accompanied by the family dog, a German Shepherd called Charlie. It is common ground that she is a strong and fit woman who has always enjoyed walking. Although they may perhaps see the positive benefits in a slightly different way, the family are all agreed that A gets pleasure and positive benefits from her walking activities.
Sadly, there have been a series of issues that have arisen in the context of A's walking that have raised health and safety concerns. In 2016 there were a series of these occurrences including an occasion when A was missing for several days. Thereafter, some safety mechanisms were tried such as medical alert pendants and the use of tracking devices. It appears that these were not successful for a number of reasons including patchy electronic coverage in the area and also the fact that A, once out walking, would remove the devices, even those promoted as being secure or not able to be removed. Boundary fencing alterations were looked into but appear to have been prohibitively expensive. In the two years between 2016 and now, in the many walks upon which A has gone alone, fortunately, she has not fallen or been injured or come to harm at the hands of strangers and there have been only two known instances where she has become lost or, at least, has been found some distance from home.
The first was in 2017 when she was out walking in the bush and appears to have become lost. She found her way to a house the residents of which phoned R. He collected her uninjured from the property which was 12 kilometres by road from the family property.
The second was an occasion on Easter Monday this year where she was found by a member of the community between 3 5 kilometres from home sitting on a park bench beside South West Highway in Byford, roughly half a kilometre from the family property boundary. She was described as being 'distressed', which was later clarified as being 'red in the face', but otherwise uninjured. The person had rung R who was by then out looking for A (and so did not receive the call), so an ambulance was called and A was taken to Armadale Health Services Emergency Department. R subsequently picked her up from the Emergency Department (ED). There is contradictory evidence as to whether or not she was discharged against medical advice. The report to the Tribunal by the hospital social worker says that she was. R's evidence is that he had permission from hospital staff to take A home.
J and S are worried about their mother's safety in the context of her wandering behaviour. They feel that the time has come to consider residential care for A. J and S seek the appointment of an independent decisionmaker to determine this issue given R's opposition to the residential care idea. It is common ground that there has been a rift particularly between J and R since 2016 when J made (but subsequently withdrew) an application to the Tribunal citing similar concerns about A.
R acknowledges that there is a risk. However he does not feel able to prevent A from going on her walks. He points out that they occur during the day, that she takes the dog with her, that most of the time she walks within the boundary of the family property and that she has not fallen or been injured whilst out walking. The recent fall in which A injured her hip, to which reference will be made, he says occurred immediately adjacent to the house one evening whilst he was cooking dinner, not whilst A was away from the house on one of her long walks.
R accepts that on occasions she becomes lost or confused but says that she is known in the area and that, generally speaking, she takes herself to a house and that contact is then made with him, or she redirects herself back to the family property. He acknowledges the concerns of his sons but wishes to respect his wife's choice to remain living at home and to enjoy the bush, pointing to the quality of life that this provides for her.
He wishes to honour his promise to her that he will not put her into care or leave her languishing in hospital. He referred to her fear that she will be 'incarcerated'.
Medical treatment
On Easter Monday evening, 2 April 2018 A fell in the garden adjacent to the house and injured her hip. It was ultimately necessary for her to have an operation putting a pin in her hip.
Although acknowledging their father's devotion to their mother, J and S are worried about the time taken for her to receive medical treatment after this fall. R explains that by saying that, although in pain with some movements, for three days A refused to go to hospital. He ensured that she had Panadol for pain relief. She was able to walk but not execute twisting movements during which he acknowledged she was 'in agony'. He ultimately persuaded her to allow an x-ray to be done on 6 April after which she was admitted to hospital and had a pin put in her hip on 8 April. She was transferred to Armadale Health Services for 4 5 days rehabilitation on 13 April and was discharged home on 26 April.
It is common ground that this discharge was against medical advice which is of concern. It needs to be understood that at this time, R had permission to take A from hospital to visit their daughter who at that time was terminally ill and coming to the end of her life in a hospice. His explanation for taking A home against medical advice on 26 April is that the hospital personnel had said to him that he could take A home 'on the Monday' (23 April) and then changed their collective mind and were raising the question of transfer to institutional care. It is in that context that his actions occurred. It is accepted that this would have been an extremely difficult time emotionally for the whole family. There is no evidence that A was deprived of necessary medical attention as a consequence of his actions. It needs to be considered that at this time, the couple's daughter was close to death.
In relation to the discharge against medical advice (DAMA) episodes from 2016 referred to by the family, R justifies his actions by reference to his wife's fear of being taken from home and incarcerated, and of her consequent fear of hospitals and her level of agitation when in them. Again, there is no evidence that as a consequence of the DAMA events, A was deprived of necessary medical care.
R's health
The other concern that J and S raise is their father's state of health. They point to a number of medical issues for him including an alleged cardiac condition and some recent 'mini strokes', and to some recent injuries sustained by him on the property which have required medical attention. Although there was no medical evidence before the Tribunal in relation to these matters, R appears to concede that he does have some limitations by reason of his physical health but feels he is able to manage to care for his wife at the moment at home with some agency and family assistance and that his health does not prevent him doing that.
Findings
Section 51 of the GA Act requires that a decisionmaker who is a guardian exercise his judgment as to what is in the best interests of the person. He is required to act in accordance with that judgment. Unless it can be demonstrated that that judgment is unreasonable, a guardian cannot be said to be acting contrary to the interests of the person.
In the view of the Tribunal, in determining whether or not a person making decisions pursuant to a less restrictive alternative to a guardianship order is acting appropriately so as to make decisions determine whether or not they should continue in that role, or indeed be appointed as a guardian, it is appropriate to judge their actions pursuant to the same standard set down in s 51.
The view of the Tribunal is that, although at times R makes decisions that may not be in line with the decisions that his sons would make in the same circumstances, it is not possible for the Tribunal to conclude that R is failing to act in A's best interests. The Tribunal is not persuaded that any of his decisions have been unreasonable.
In relation to the medical discharge issues, the Tribunal is not persuaded that A's health has been compromised by reason of any of the decisions made by R. It appears that the 2017 DAMA incident involved a situation where A was not injured as did the 2 April 2018 incident. In relation to all of the DAMA incidents, it appears that there was no compromise to A's medical treatment. On the recent occasion, the unchallenged evidence appears to be that the issue between R and the treating team appeared to relate more to future care planning for A rather than the clinical care associated with her hip surgery. There is certainly nothing to suggest that her hip wound has deteriorated or her recovery has been compromised by her departure from hospital. The evidence is that A has a regular general practitioner (GP) who is readily accessible to the couple and with whom R gets on and whom he trusts. A sees the GP regularly according to R. Although it is true that R puts much faith in complementary therapies in assisting with A's Alzheimer's disease, there is no suggestion that A's general medical care and oversight is in anyway substandard.
In relation to R's health, there is no evidence before the Tribunal which supports the conclusion that R is unable to care for his wife at home with assistance from community care agencies. It is possible for support to be augmented further if required. R disputes the suggestion that he is not open to support being put in place in the care of A at home. There is some concern expressed by the family that R has been resistant to care going into the home at least at times. His evidence to the Tribunal is that he is prepared to accept help at home and increased help has been put in place since A's discharge from hospital. The Tribunal accepts this evidence.
It is to be noted that the position of the family members at the hearing was that they would have liked an opportunity for the status quo to remain until the originally scheduled later hearing date which indicates to the Tribunal that they were prepared to give R the benefit of the doubt in relation to this matter.
The Tribunal certainly takes the view that there is nothing about R's health which indicates that he is unable to competently make decisions for A as her next of kin. There is no conflict of interest in him doing so. It is perfectly natural and reasonable that he would wish to have A at home with him as long as he is able to provide her with care at home. This appears to be consistent with her wishes. The Tribunal accepts as genuine the statements made by him at the hearing that he acknowledges that there will be a time when this is no longer possible and when institutional care may need to be considered.
The matter was listed urgently by the Tribunal given the most recent DAMA and the reported concern of the hospital social worker that collateral information received by the hospital made reference to some sort of suicide pact. There is insufficient evidence for the Tribunal to conclude that R would take any action that would compromise A's safety. He denies that he would ever do that and he specifically denies any suicide pact or similar. His explanation is that his comment that he and A 'would die together' has been misinterpreted; that he meant that they would be at home and would be together until the first of them died.
Coming then to the issue about A's wandering, in looking at a person's best interests the Tribunal must consider not only the person's physical health and safety but also their emotional and psychological health and well-being. In making decisions in the best interests of a person, it is necessary for a decision-maker to similarly weigh up all aspects of the whole person including their physical health and safety and their emotional and psychological health and well-being. There is a wide scope for differences of opinion in all of these areas as to where the line should be drawn and how to balance concerns for physical health and safety against a person's happiness and emotional and psychological well-being, when making decisions as to what is in their best interests.
It is common ground that A would be very unhappy and would likely not live very long because of her unhappiness were she to be placed in care.
It is common ground that, short of detaining her in the house in some way or within some newly installed fenced garden enclosure it is almost impossible to prevent A going for her walks in the bush if she lives at the family property. It is clear that the family have thought long and hard about alternative mechanisms to keep her safe or to at least know where she is. No practical measure has been found. The Tribunal is satisfied that, if anybody can come up with a practical affordable solution that will work, that R is open to trying it. It is unclear whether A would tolerate a one-to-one companion given how much she appears to enjoy the solitude of her walks. Certainly, it appears that R is not in a position to accompany her at all times on her walks. It is also unclear whether A would tolerate restriction to some smaller fenced garden area. It appears to be the view of all of the family that this would cause distress and unhappiness for her, hence it has not been pursued.
It is not for the Tribunal to make a judgment about where A should live. The task of the Tribunal is to determine whether A needs a decisionmaker and who that should be. In determining whether decisions are being made in A's best interests, it is necessary for the Tribunal to consider the quality of the decisions made and the thinking that lead to the decision.
In the view of the Tribunal, R has formulated his opinion and made a judgment as to what is in A's best interests which judgment, in the view of the Tribunal, is, in all the circumstances, not an unreasonable judgment. He has made the decision to accept a greater risk to A's physical safety in the interests of her emotional and psychological well-being. This is what is referred to in the literature as 'the dignity of risk'. In the view of the Tribunal, the fact that other family members who love and care for her might make a different decision does not make R's decision wrong or unreasonable. It just makes it a different decision.
In the view of the Tribunal, it is not possible to say that in making the judgment that he has made, R is acting contrary to A's best interests. He has known A for over 60 years and it is not in dispute that he is devoted to her. In the view of the Tribunal, given that it cannot be determined that he is acting against her interests. There is no conflict of interest in him exercising the role of decision-maker. In the view of the Tribunal the less restrictive alternative cannot be shown to be working adversely. In fact, in the view of the Tribunal, the less restrictive alternative is operating in what is, reasonably adjudged, in her best interests. There is no suggestion that R is motivated by any self-interest in so deciding. The Tribunal has no reason to believe that going forward he would act other than in A's best interests.
Equally, the Tribunal takes the view that, in all the circumstances, the initiating of the application to the Tribunal was an entirely appropriate thing for the sons to have done, given the differences of view within the family as to what was best for A. It is accepted that the family members have acted out of love and concern and in what was, in their genuinely held view, in the best interests of A and without intending disrespect to R. Notwithstanding what has been said about the reasonableness of the choices made by R, the Tribunal acknowledges that a decision to place a greater weight on physical risk and a lesser weight on emotional wellbeing might also be seen as within the range of decisions that might reasonably be made in the circumstances. The Tribunal well understands that the sons have seen themselves as to some extent being between a rock and a hard place in this matter.
Ultimately it is for the Tribunal to make a judgment based on the principle that underpins this jurisdiction, namely, what in its view is the decisionmaking mechanism that is in the best interests of A.
Should R be appointed guardian?
R has indicated to the Public Advocate's office that he would like to be made guardian. In his evidence, he has indicated a great degree of fear in both him and A as to what decisions may be taken by 'government' or 'the [health] authorities' regarding A. He speaks of A being on some sort of risk list according to communications he has had with the medical authorities, and of an escalating risk of 'incarceration' of A given the number of presentations to ED in recent years. It appears to the Tribunal that part of the fracture that has occurred between R and J (and to some extent other family members) since the earlier application to the Tribunal in 2016, relates to this fear.
In the Tribunal's view, it may assist in the reconciliation between the members of the family, and so be in A's best interests, if R felt confident that he had the authority to ensure that the plan that he and A have to remain at home together for as long as possible were within his control (subject always to the oversight of the Tribunal). In the view of the Tribunal, the acknowledgement of that control and its reflection in formal orders may also allow him to feel confident to deal with support agencies and hospitals in A's best interests without feeling under threat from them. He may also then be in a position to reassure A and perhaps encourage her cooperation with hospitals and clinical staff where her best interests demand it.
Accordingly, notwithstanding the existence of a potential less restrictive alternative to the making of a guardianship order, in the view of the Tribunal, it is in the best interests of A that there be a formal guardianship order in R's favour. In the view of the Tribunal, R is an entirely suitable person to be so appointed. If the order is felt not to be working in the future, or if the family or treating team become concerned about A, the matter can always come back to the Tribunal.
Functions
The areas in which decisions clearly need to be made ongoing for A are in relation to the provision of services and supports to her in the community, in relation to the oversight of her medical care and the providing or withholding of consent to medical treatment and procedures, and in relation to decisions that need to be taken for the time being and into the future regarding her accommodation and care. The guardianship order should therefore cover these areas.
Review
Given that there have been issues raised about R's health, the Tribunal is of the view that this matter should be considered again in two years time subject, of course, to the right to any party to bring the matter back earlier if the order is not operating in A's best interests.
Order
The Tribunal declares that the represented person, A;
(a)is incapable of looking after her own health and safety;
(b)is unable to make reasonable judgments in respect of matters relating to her person;
(c)is in need of oversight, care or control in the interests of her own health and safety; and
(d)is in need of a guardian.
and the Tribunal orders that:
1.R is appointed limited guardian of the represented person with the following functions:
(a)To decide where the represented person is to live, whether permanently or temporarily;
(b)To decide with whom the represented person is to live;
(c)Subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person;
(d)To determine the services to which the represented person should have access.
2.The guardianship order is to be reviewed by 4 May 2020.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS H LESLIE, MEMBER
10 MAY 2018
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