BS and VTN

Case •

[2009] WASAT 144

•

29 JULY 2009

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   BS and VTN [2009] WASAT 144

MEMBER:   MS M JORDAN (SENIOR SESSIONAL MEMBER)

HEARD:   28 NOVEMBER 2008 AND 30 JANUARY 2009

DELIVERED          :   29 JULY 2009

FILE NO/S:   GAA 2322 of 2008

BETWEEN:   BS

Applicant

AND

VTN
Represented person

Catchwords:

Need for appointment of guardian to sign visa application for carer from Vietnam - Alternative arrangements to be proposed for local qualified carers - No need for guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 43(1)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

Represented person       :     Self-represented

Solicitors:

Applicant:     N/A

Represented person       :     N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

  1. An application was made on 9 October 2008 for the appointment of TC as the guardian for the represented person for the purpose of signing papers for the Department of Immigration and Multicultural Affairs to sponsor the niece of TC from Vietnam to be employed as a full‑time carer for the represented person so that he could be returned to his home from his present nursing home where he receives high‑level care.

  2. The matter was adjourned on 28 November 2008 for the following to occur prior to resumption of the hearing on 30 January 2009:

    a)the applicant to file with the Tribunal the document requiring the signature of the represented person's guardian;

    b)the administrator ‑ the Public Trustee ‑ to attend the resumed hearing; and

    c)the Office of the Public Advocate to provide a report for the resumed hearing as to whether it is in the best interest of the represented person to have TC appointed as his guardian, given her proposal to return him to home care, in the circumstances of sponsoring a niece from Vietnam to be employed as his carer.

  3. The represented person's daughter of his first marriage, HL, opposed her father being removed from the nursing home where he is receiving a satisfactory level of high care, as she was not convinced that the same level of care could be provided to him at home, and also, due to the friction between her and the second family of the represented person, HL was concerned that her present access to her father would be restricted.

  4. When the hearing resumed, it was clear that the financial obligations upon the sponsor imposed by the Department of Immigration and Multicultural Affairs were such that it was appropriate that the administrator be the signatory to the document.  The administrator was not willing to undertake the sponsorship as, although the represented person had considerable funds at his disposal due to a court‑awarded trust following the motor vehicle accident in which the represented person received his severe injuries, the funds at the administrator's disposal as administrator were limited to approximately $25,000, which would not be sufficient security to undertake the sponsoring role.  As trustee of the court‑appointed trust, the Public Trustee was not prepared to sign the document, as he was not satisfied that the appropriate level of care could be provided to the represented person at home under the proposed arrangements.  However, the trustee was prepared to meet the expenses of carers to look after the represented person at his home, should he be returned there.

  5. The applicant then, in consultation with TC, told the Tribunal that they would put forward a proposal to the trustee for the payment of private carers to look after the represented person at home.  As that had not previously been discussed, the applicant stated that it would take some time to put together such a proposal, with the agreement of the represented person's present treating team and carers, with costing for the approval of the trustee.  Such a proposal would be put to HL, who had been opposed to her father being returned home, for her agreement prior to the represented person being removed from the nursing home.  As all parties agreed with this proposal, there was no further need for the guardianship order to proceed and it was therefore dismissed.

Background

  1. Present at the hearing on 28 November 2008 were:

    •BS, the applicant;

    •TC, the wife of the represented person, VTN;

    •CN, the daughter of TC and the represented person;

    •HL, a daughter of the represented person and his first wife; and

    •PN, husband of HL.

  2. At the resumed hearing on 30 January 2009 were, in addition to the parties at the first hearing:

    •TN, son of the represented person and TC;

    •TYN, daughter of TC, but not a child of the represented person;

    •CLN, brother of HL;

    •NB from the Office of the Public Advocate (OPA);

    •JH from OPA;

    •PC from the Public Trustee's office; and

    •CH from the Public Trustee's office.

  3. In both hearings, a Vietnamese interpreter assisted the Tribunal.  At the first hearing, the interpreter was present in the room and, at the second hearing, the interpreter was by telephone, which proved to be very unsatisfactory and complaints were made by the parties concerning the capacity of the interpreter to properly interpret the proceedings.  Notwithstanding the complaints, the hearing proceeded, as at least one of the parties had travelled from Vietnam to attend the hearing.  The matter had been delayed by two months to set a date when all parties who were present at the first hearing could be available for the second hearing.

The issues raised in the applications and at the hearing

1)VTN's desire to return home with his family.

2)Who can sign the sponsorship documents required by the Department of Immigration and Multicultural Affairs (DIMIA) for the niece of TC in Vietnam to be VTN's carer.

3)The capacity of the niece of TC to be able to provide appropriate care at home for VTN.

4)Whether other suitable carers could be engaged locally to provide an appropriate level of care for VTN.

5)Whether in returning VTN to home care would inhibit the capacity of HL and children from VTN's first marriage in continuing to have regular access to him.

  1. VTN's desire to return home with his family

  1. VTN had been severely injured in a motor vehicle accident in 2003.  The injuries sustained were closed head injuries including right basal ganglia haemorrhagic contusion, right frontal intracerebral bleed with traumatic subarachnoid haemorrhage and intraventricular blood.  Additionally, he sustained a thoracic spine injury and bilateral rib fractures.  After his initial stabilisation, VTN was returned home to the care of TC who, together with carers employed through the services of Network Case Management Services, employed BS as his case manager.

  2. An administrator was appointed for VTN on 16 September 2004, initially being TC but, following a request by TC to review this order, the Public Trustee was appointed as VTN's administrator on 5 December 2006.

  3. CN told the Tribunal that she and her husband are prepared to build a specific facility as an addition to the house owned by them in which TC resides.  This facility was designed with a view to VTN being accommodated, together with accommodation for a carer and all the special facilities that he would require.  At the first hearing, CN told the Tribunal that planning approval had been obtained but that the building would not commence until the sponsorship document had been submitted to DIMIA.  However, by the second hearing, the building had commenced, as the builder was not prepared to wait any longer under his contract to build the facility.

  4. In addition to the high level of care provided at the nursing home, his trustees also fund an additional private carer to assist him at the nursing home.  TC visits VTN six days each week, which journey takes her four bus rides daily, leaving home at 9 am, arriving at the nursing home at between 10 am and 10.30 am and leaving at 3 pm to catch two buses home.  Other family members also visit regularly; CN, PN and HL visit each weekend so that, in total, the Tribunal was told that VTN receives 29 hours per week of family visitors being with him at the nursing home, in addition to the private carer.

  5. All parties agreed that VTN is not happy in his present residence and that he constantly asks to be able to go home.

  1. Who can sign the sponsorship documents required by DIMIA for the niece of TC in Vietnam to be VTN's carer

  1. The DIMIA document required the sponsor to undertake to:

    •provide financial assistance to the niece of TC for up to two years from arrival in Australia or from the date of the grant of the visa;

    •meet all expenses related to health, medical and pharmaceutical needs; and

    •provide support, as required, to attend appropriate English language courses.

  2. TC told the Tribunal that, although she was qualified to sponsor her niece, she would only be able to do so on a holiday visa for a period of six months, whereas, with VTN's special needs, he could sponsor her niece as his carer, and such an application would be given priority because of his needs.  It was for this reason that BS made the application to have TC appointed as guardian for VTN so that she would be able to sign the document on his behalf.

  3. CH told the Tribunal that, as administrator, the Public Trustee only had the management of $25,000 for VTN, which was insufficient for him to enter into such a guarantee.  VTN had considerable other funds available to the Public Trustee as a court‑appointed trustee, being the proceeds of litigation arising out of his motor vehicle accident.  As trustee, the Public Trustee was also not prepared to sign the sponsorship document, as he could not conclude that it would be in VTN's best interests to sponsor the niece of TC to care for him at home when he was presently receiving high‑level care in an appropriate facility.

  1. The capacity of the niece of TC to be able to provide appropriate care at home for VTN

  1. At the first hearing, TC told the Tribunal that when she visited Vietnam with VTN following his accident in 2005, the niece of TC had assisted her with his care.  The niece of TC had assisted her for the six weeks they were in Vietnam, cooking, showering VTN and looking after him.  TC told the Tribunal that, at the time, the niece of TC was working in a hospital caring for people.

  1. Whether other suitable carers could be engaged locally to provide an appropriate level of care for VTN

  1. Prior to VTN being placed in a nursing home, he had been living at home with TC where he was cared for by family and carers who came to the home.  This arrangement fell through, as TC was herself still recovering from the injuries that she received in the same accident and, additionally, it became difficult, according to BS, to find suitable carers to be employed, given the HIV status of VTN.

  2. BS told the Tribunal that VTN does not need someone with him 24 hours a day, but there are periods through the day when he needs two carers to do things such as shower him, toilet him, etc.  He needs a large space to accommodate his equipment such as a bed and hoist.

  3. BS said that when VTN first went into the nursing home, he had a lot of skills; he was able to feed himself, brush his hair, could go to the toilet and he could walk.  BS continued that the reason he had those skills was because carers and family members allowed him the time to do those skills for himself.  For example, he needed 20 minutes to brush his hair and he was allowed that time.

    Staff in the nursing home do not have the time available to give that much individual time to their patients … and we all watched [VTN] within weeks lose all those skills that he had.  I don't believe that [VTN] needs a fully[-]trained nurse to look after him.  He needs someone that [sic] is competent to do PEG feeding, to do changing, to do washing, but he also needs someone that [sic] will just spend a lot of time allowing him to do some basic things for himself and I don't know if he's capable of re‑learning anything, but he will never ever re-learn anything in a nursing home.  (T:12, 30.01.09)

  4. BS had not prepared any costing related to the employment of local carers with appropriate training or for how many hours per week they were required, as she had been pursuing the issue of the visa to bring the niece of TC from Vietnam to be the principal carer.  BS agreed that a proposal should be put to the Public Trustee for his consideration following discussion of VTN's needs with his treating team, his present carers and the family.

  1. Whether returning VTN to home care would inhibit the capacity of HL and children from VTN's first marriage in continuing to have regular access to him

  1. HL told the Tribunal at the first hearing that she was opposed to her father being removed from the nursing home where he receives an appropriate level of care, and that she was not satisfied that his needs could be met by the niece of TC coming from Vietnam, of whom she knew nothing.  HL's other concern expressed at this time was that, if her father was returned to the home of his second wife, HL would feel that she would be inhibited from continuing her weekly visits to her father.

  2. At the second hearing, when this concern was understood by TC, she stated that she would welcome HL and any of VTN's first family to visit with him at her home.  She said that if they were uncomfortable by her presence with VTN at the time of their visit, she would return to her own rooms within the house and therefore not have any direct contact with them.

  3. BS told the Tribunal that, in preparation of a proposal to be put to the Public Trustee for approval, she would work with all family members, including HL, and would seek her approval and inclusion in the final arrangements.  She offered to work as a go‑between to facilitate any problems or issues that HL would have with CT in visiting her father at the home of CT.

Relevant legislative provisions

Section 43(1)(a) ‑ (c) of the Guardianship and Administration Act 1990 (WA)

Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40 ‑

(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,

the Tribunal may by order declare the person to be in need of a guardian …

Reasons for Decision

Capacity

  1. The Tribunal had a report from the VTN's general practitioner, Dr NQ, who states that VTN had impaired cognitive function arising out of a motor vehicle accident in 2003, was HIV positive and required PEG feeding.  Dr NQ stated that VTN is not capable of making reasonable decisions with regard to his personal health care, his living situation or his financial affairs.

  2. NB from OPA said that, in her view, capacity was not clear‑cut; that, when talking with VTN, he was able to clearly state that he wanted to go home.  Family members had told her that, for 80% of the time, VTN was able to understand what was being discussed, but that he became overcome with emotion 20% of the time.

  3. BS said that, in her view, he did not have the capacity to make reasonable decisions.

  4. The Tribunal is satisfied that VTN is a person who is incapable of looking after his own health and safety.

Need for a guardian to be appointed

  1. There has previously been no need to have a guardian appointed, as CT, as the wife of VTN, has made decisions with regard to his treatment.  There has been no disagreement previously with regard to the placement of VTN in the nursing home or the services with which he should be provided prior to his placement there.

  2. The need claimed by the applicant is for the document from DIMIA to be signed to enable the niece of TC to be sponsored from Vietnam as his carer.

  3. However, during the course of the hearing, it became apparent that the administrator would not sign the document; that HL was unhappy with the proposal to have her father leave the nursing home to be cared for by the niece of TC; and NB submitted that an independent guardian should be appointed to enable the guardian to undertake an enquiry as to the suitability of the proposed arrangement.  BS then proposed to pursue the employment of local carers in combination with family to undertake the care of VTN.

  4. BS proposed to provide a submission to the Public Trustee, as trustee of VTN's funds, as to the care needs of VTN and how they would be met.  BS also agreed that she would include HL in the preparation of such a proposal and seek her agreement prior to the finalisation of the plan.  HL agreed that this was a suitable resolution of her concerns.

  5. As all family members were then in agreement with this course of action, there was no ongoing need for a guardian to be appointed and the application was dismissed.

Order

The guardianship application is dismissed.

I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS M JORDAN, SENIOR SESSIONAL MEMBER

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