DTM and JMM - [2009] WASAT 203

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: DTM and JMM [2009] WASAT 203

MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)
MS M JORDAN (SENIOR SESSIONAL MEMBER)
DR R CLARNETTE (SENIOR SESSIONAL MEMBER)

HEARD: 29 JULY 2009

DELIVERED : 21 OCTOBER 2009

FILE NO/S: GAA 1229 of 2009
GAA 1310 of 2009

BETWEEN: DTM
Applicant
AND
JMM
Represented Person

Catchwords:

Guardianship and Administration Leave to apply for review of guardianship order - Review by a Full Tribunal Section 17A of the Guardianship and Administration Act 1990 (WA) - Refusal of leave to apply for review of order appointing the Public Advocate as guardian confirmed

Legislation:

Guardianship and Administration Act 1990 (WA); s 3, s 17A, s 19, s 86, s 86(1), s 87(1), s 87(5)

State Administrative Tribunal Act 2004 (WA); s 27, s 29(1), s 29(2), s 29(3), s 32, s 32(7), Pt 3 Div 3

Result:

Application dismissed and refusal of leave to review order confirmed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Represented Person : N/A

Solicitors:

Applicant: Self-represented
Represented Person : N/A

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

RE JMM; EX PARTE JMM [2008] WASAT 221
RE JMM; EX PARTE JMM [2009] WASAT 95

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The first applicant, DTM, was the represented person's daughter. The represented person had six children, who were in conflict regarding the management of their mother's financial and personal affairs. On the one hand, DTM together with her sister DAM and brother GM sought orders that, if granted, would have resulted in either DTM being appointed the guardian of the represented person, or alternatively, an order that no guardian be appointed. On the other hand, the represented person's remaining children, being two sons, BM (and his wife) and WM, and a daughter, JB (and her husband), and the represented person's sister, ST and brother-in-law, FT were content to leave in place the current Tribunal orders which appointed the Public Advocate as limited guardian and the Public Trustee plenary administrator for the represented person.
Since 2002, the represented person has been the subject of a range of proceedings before this Tribunal and the former Guardianship and Administration Board, under the Guardianship and Administration Act 1990 (WA).
The orders appointing the Public Advocate and the Public Trustee were made by a threemember Tribunal on 15 May 2007; a three-member Tribunal reviewed and confirmed those orders on a periodic review on 13 June 2008, and added an order requiring further review by 13 June 2013 (see REJMM; EX PARTE JMM [2008] WASAT 221).
On 13 February 2009, the applicant applied under s 87(1) and s 86(1) of the Guardianship and Administration Act 1990 (WA) for 'a total review of the latest guardian put in place'. Under s 87(1), the applicant required the leave of the Tribunal to apply for a review of the orders then in place. On 13 May 2009, the Tribunal refused leave and dismissed the application (see RE JMM; EX PARTE JMM [2009] WASAT 95) on the basis that there was no change in the represented person's circumstances nor was there any other reason for a review.
The application currently before this Tribunal was misconceived. Under s 17A of the Guardianship and Administration Act 1990 (WA), a Full Tribunal (as defined) must review an application by a person aggrieved from a decision of a single member. There is no right of review by a Full Tribunal of a decision made by a threemember panel; that review lies to the Supreme Court. Accordingly, the only decision that the Tribunal could review under s 17A of the Guardianship and Administration Act 1990 (WA) was the order of 13 May 2009 refusing leave under s 87(1) to apply for review under s 86(1) of the Guardianship and Administration Act 1990 (WA).
DTM told the Tribunal that she had new evidence to put before it for consideration. Although she provided the Tribunal with letters, documents and a video film, there was nothing in that evidence that the Tribunal considered constituted a change in circumstances or provided any other reason that would be likely to alter the decision of the Tribunal to appoint the Public Advocate and the Public Trustee. The order to refuse leave was therefore confirmed. DTM's application also sought an investigation by the Tribunal into a range of transactions and decisions made over a period of years. This is not within the jurisdiction of the Tribunal and was therefore also dismissed.
The second applicant in these proceedings was the Public Trustee who filed an application on 13 May 2009 seeking the Tribunal's approval for the payment of a gift from the represented person's estate. The Tribunal authorised the Public Trustee, as administrator, to pay $9,795 for a headstone for the represented person's late husband.

The issues

The issues we must decide are:
1)does the Tribunal have jurisdiction to conduct the investigation and make the orders sought by DTM;
2)what decision is the subject of this s 17A review application; and
3)should leave be granted to DTM to enable a review of either or both the guardianship and administration orders?

Background

The represented person has six children, who are divided into two 'factions' that cannot agree about events over the past seven years with respect to their parents, and what should occur in the future for the wellbeing of their mother.
The faction comprising BM, WM and JB applied for JB and BM to be appointed guardians of their mother's estate. As a result of that application, the Tribunal appointed the Public Advocate limited guardian for the represented person and the Public Trustee plenary administrator. The Tribunal found that because of continuing family conflict, it was necessary to appoint a guardian and an administrator who were independent of the family and of the influence of either faction. This group, together with the represented person's sister, ST, and brother inlaw, FT, did not attend the hearing of this application, but wrote to the Tribunal advising of their ongoing support for the existing arrangements.
The other faction consists of the applicant, DTM, her sister, DAM, and her brother, GM. They are very upset with the current arrangements and the applicant wants to be appointed her mother's guardian and we assume, administrator. They strongly feel that this is the only way to achieve what is best for their mother. They make extensive allegations regarding the other family members and their partners. The applicant and her brother and sister also complain vehemently about the conduct of the Public Advocate and some of her officers, including the delegated guardian for the represented person. They complain bitterly about the facility where their mother resides. Their numerous complaints have been sent to the Ombudsman for investigation; it appears he declined to make any substantive findings in support of this faction's allegations. They have also complained to the police, the Attorney General and the former President of this Tribunal. They seek a comprehensive investigation into a very wide range of matters, including some issues relating to their late father and his care. This displays a misunderstanding of the role and function of this Tribunal, which are dealt with later. It also displays a sense of utter frustration felt by these three siblings who cannot understand why orders are not made according to their wishes and in their favour.
This is reflected in DTM's application to the Tribunal on 2 May 2009 made to the Tribunal for a review under s 17A of the Guardianship and Administration Act1990 (WA) (GA Act). We accept that DTM, DAM and GM thought that the Tribunal would review the initial decision to appoint a guardian and an administrator for their mother and her estate, and not only find in their favour, but conduct a forensic investigation and examination of everything that has occurred in the recent years relating to their parents. This is clearly not what the Tribunal has done and nor can it. It is therefore helpful to set out DTM's application: this application contends that it is made on behalf of the represented person and that it reflects her wishes:
DTM set out that the reason she is making the application is:
Because I don't agree with my mother being under guardianship by an appointed [delegated guardian], put in place by SAT. He is unsuitable and complacent and shows no duty of care to my mother. I have made endless concerns to the Public Advocate and the Nursing home and Aged Care and they have all failed and continues [sic] to cover up those poor judgment and care they say they provide. Its only about profit and image. My mother deserves much better care!
The applicant set out the order she wants SAT to make:
To review new findings that I have to present to SAT. I have witnesses to testify of my help and care towards my mother. Video and phone pictures as evidence and photos of the food given at the nursing home which my mother dislikes and because of this fact, continues to lose weight. Mum's problems with her dentures, that I've reported, are loose and Mum having a lot of discomfort. Perjury ongoing at nursing home to protect themselves. SAT ignoring these signs and causing my mother stress and her health to deteriorate daily.
Evidence of disability:
I have reported to mum's doctor many times about her condition. He always replies with a denial answer, cold, and unsatisfactory whether it be her medication, weight loss, health deterioration. This is not acceptable to me!
The applicant says that her application is urgent because:
I keep being blocked by inaccurate findings and cover ups by the system. You protect them. It's my mother who requires attention, better care, a much better nursing home to reside in and live out her days.
The history of the proceedings relating to the represented person before this Tribunal is as follows:
1)on 4 May 2004, JB's husband applied to the former Guardianship and Administration Board for administration and guardianship orders with respect to the represented person. The application was dismissed as the represented person apparently had capacity to make decisions.
2)on 24 February 2006, the director of nursing at the facility at which the represented person was then resident applied to the Tribunal, but subsequently withdrew the application on 2 March 2006.
3)on 10 April 2007, JB applied to be appointed jointly with her brother BM as guardian of her mother and administrator of her mother's estate. On 15 May 2007, a three-member panel of the Tribunal appointed the Public Trustee as plenary administrator, the Public Advocate as limited guardian and it revoked an enduring Power of Attorney made by the represented person on 23 July 2003 which appointed DTM and DAM as her attorneys.
4)on 13 June 2008, a three-member Tribunal undertook a statutory review of the two orders referred to in 3) above. The Tribunal also heard applications filed by DAM and DTM for review of the orders. The Tribunal confirmed the appointments: see RE JMM; EX PARTE JMM [2008] WASAT 221 (RE JMM 2008).
5)on 13 February 2009, DTM applied to the Tribunal for review of the guardianship and administration orders that were then in place. A single member of the Tribunal considered the application and refused to grant leave to DTM to apply for review. The member also dismissed DTM's application for review. The reason for dismissal was that the issues raised were substantially the same as those which were canvassed in previous hearings and no new evidence of changed circumstances was put before the Tribunal. It is this decision which is the subject of these proceedings; see RE JMM; EX PARTE JMM [2009] WASAT 95 (RE JMM 2009).
We accept that DTM and DAM thought that when DTM lodged the application now before us, the Tribunal would review the orders appointing the Public Advocate and the Public Trustee; that is, that the Tribunal would review the orders made by the threemember Tribunal on 15 May 2007, as confirmed by the three-member Tribunal on 13 June 2008.
However, those orders were made by a three-member panel of the Tribunal. Whilst s 17A of the GA Act allows for review as of right, that section provides that only a decision of a single member of the Tribunal can be reviewed by the Full Tribunal. Section 3 of the GA Act defines Full Tribunal as the Tribunal consisting of the President or a Deputy President and two other members. The orders appointing a limited guardian and plenary administrator for the represented person and her estate and confirming those appointments, were made by a Tribunal constituted by three members in each case. There is therefore no right of review under s 17A. The only appeal avenue open to an aggrieved person in those circumstances is under s 19 of the GA Act and that appeal right is to the Supreme Court.
Accordingly, the application in these proceedings is (and can only be) an application to review the decision of the single member of the Tribunal made on 13 May 2009 when the Tribunal refused leave under s 87(1) of the GA Act for DTM to apply for review pursuant to s 86 of the Act. As such, DTM's application was dismissed. The primary reason for dismissing the application was that the matters raised by the application were substantially the same as the matters dealt with on periodic review of the guardianship order undertaken by the Tribunal less than 12 months previously. There had been no change in the represented person's circumstances and there was no other valid reason for reviewing the orders.
We are therefore limited to reviewing that decision made by a single member of the Tribunal not to grant leave under s 87(1) of the Act.

Review jurisdiction

The Tribunal as constituted under s 17A of the GA Act exercises its review jurisdiction pursuant to Pt 3 Div 3 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
This means that we must examine the application for leave as though we are the original decision-maker considering the original application. We have therefore considered all of the material before the single member as referred to in her written reasons, together with additional material filed with the Tribunal and referred to below. We approached our consideration of the matter 'afresh' without any need to find fault with the decision made by the single member. In essence, we began again and looked at the application made by DTM in February 2009 together with her application under s 17A of the GA Act.

Material before the Tribunal

DTM wrote a letter to the Tribunal dated 20 May 2009. DAM wrote letters to the Tribunal dated 7 June 2009, 28 June 2009 and 19 July 2009. The sisters wrote a joint letter dated 1 July 2009, enclosing a large number of documents, including copies of letters to various individuals including the Ombudsman, the Public Advocate, the Public Trustee and the Attorney General, all of which contained information concerning issues that arose within the family in the past or the financial situation of the estate of either the represented person or her deceased spouse (the sisters' father), but none of which contained any new relevant evidence relating to the issue of ongoing guardianship of their mother.

The relevant legislation

The GA Act, s 17A, s 86(1), s 87(1), s 87(5):

17A. Review
(1)Where the State Administrative Tribunal consisting of one member makes any determination, a party who is aggrieved by the determination may request the President to arrange for a Full Tribunal to review the determination, and the President shall comply with any such request.
(2)A request under subsection (1) is to be made within 28 days of the date of the determination or, if the Full Tribunal considers there is good reason for making the request outside that time, such further time as the Full Tribunal allows.

86. Review on application
(1)The State Administrative Tribunal may at any time on the application of
(a)the Public Advocate; or
(aa)the Public Trustee; or
(b)a represented person or a guardian or an administrator; or
(c)a person to whom leave has been granted under section 87,

review a guardianship order or an administration order.
…

87. Leave to apply for review
(1)Any person may request the State Administrative Tribunal for leave to apply for the review of a guardianship order or an administration order.
…
(5)The State Administrative Tribunal may -
(a)refuse the request; or
(b)if it is satisfied that because of a change of circumstances or for any other reason a review should be held, grant, either unconditionally or subject to any condition, leave to the person to apply for the review.

The SAT Act 2004 (WA), (s 27), s 29(1), s 29(2), s 29(3)

27. Nature of the hearing
(1)The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decisionmaker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2)The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3)The reasons for decision provided by the decisionmaker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
…

29. Powers of Tribunal on review
(1)The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision‑maker in making the reviewable decision.
(2)Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal.
(3)The Tribunal may
(a)affirm the decision that is being reviewed;
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and
(i)substitute its own decision; or
(ii)send the matter back to the decision‑maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,

and, in any case, may make any order the Tribunal considers appropriate.
…

The review hearing

The two applications were heard before the Full Tribunal on 29 July 2009 before Deputy President Judge Eckert and Senior Sessional Members Ms M Jordan and Dr R Clarnette.
The applicant, DTM, and her sister, DAM, attended the hearing in person; her brother, GM, attended by telephone. Also present were the delegated guardian; representatives of the Public Trustee and KG from the facility at which the represented person lives.
DTM told us that she wished to send her mother to another aged care facility where she would have better food and a private room. She told us that she had further evidence such as a video tape of her mother eating certain foods, being in company with friends and family and visiting the hairdresser. Her concerns were that her mother's dentures had been removed and consequently, she was only able to eat soft foods and that the nursing home was not providing appropriate care for her mother. The applicant then lapsed into talking about family issues relating to financial matters going back particularly to 2003, 2004 and 2007.
GM told us that he didn't understand the family conflict, but that it existed and had for some time. His work in a correctional centre had taught him about the law and he was concerned that the conflict would continue. Although he supported his sisters, DTM and DAM, what he wanted was whatever was in the best interests of his mother.

The delegated guardian told us that DTM and DAM had asked for information about the represented person and he was unsure of how much information he could provide without the express authority of the Tribunal, and this had created some problems in his relationship with DTM and DAM. He noted that with the degree of family conflict that exists, it is not possible to have family meetings.
KG, from the nursing home, told us that there had been an occasion when police had attended the facility at the instigation of DTM and DAM, following a complaint to police of an allegation of failure of duty of care to the represented person. The staff had been instructed not to provide information about the represented person to family members, and to provide that information only to the guardian. KG told us that she and staff had been harassed by DTM and DAM, and that staff feel threatened by them.
Those present at the hearing agreed that in the future, if the guardian had information concerning the represented person's health status, he could release it to family members in consultation with KG or her nominee.
We made orders for further documents to be filed. DTM and DAM did not bring to the hearing the further evidence they said they had collected and collated.
All relevant interested persons had consented to the Public Trustee's application, so we made the following orders in that regard:
1.the Public Trustee is authorised to make a gift from the represented person's estate for the purpose of purchasing a headstone of a reasonable cost for [DPTM (the represented person's late husband)]; and
2.the wording on the headstone must include the name of the represented person as his wife and the names of the children of the represented person and [DPTM].

Further evidence received following the hearing

Since the hearing, we have received the following documents from DTM and DAM:
1)a letter dated 16 August 2009 from both sisters;
2)a copy of a notice of an annual general meeting of [body corporate of parents' unit] for meeting [ … ] 2003 and accompanying financial statements;
3)a seven page typed submission from DAM dated 21 August 2009; and
4)a miniature video purporting to show images of the represented person, which we have not been able to view.
As ordered by the Tribunal, we received a letter dated 18 August 2009 from the Director of Nursing at the facility where the represented person lives, enclosing:
1)a medical report by Dr P Rudolph dated 31 July 2009;
2)an occupational therapy report by LB, dated 6 August 2009;
3)a dietary report by JF dated 15 August 2009;
4)a speech pathology report by AC, dated 17 August 2009;
5)an overview of progress notes by nurse practitioner LA, dated 4 August 2009;
6)a mobility care plan by MC, dated 14 August 2009;
7)current routine care plans, dated 17 August 2009;
8)specific care plans, dated 17 August 2009;
9)a restraint authority, dated 18 March 2009;
10)an aromatherapy care plan dated 9 April 2009; and
11)a continence care plan, dated 9 April 2009.
These documents relate to two separate issues. The first relates to continuing financial issues involving other family members and the estates of the represented person and her deceased spouse. These issues have clearly caused considerable conflict within the family and have not been resolved to the satisfaction of DTM, DAM and GM. However, they are not relevant to the issue being decided in these proceedings, which is whether or not leave should be granted to DTM to apply for a review of the Tribunal's order to continue the appointment of the Public Advocate as her mother's limited guardian. We note that the complaints regarding the historical management of their parents' estates are not matters that would validly be before this Tribunal, in any event. This Tribunal does not have an investigative function. Its role is to make decisions based on the information before it and although it should ensure that all relevant material is disclosed to it (s 32(7) of the SAT Act), it can only do that to an extent that is reasonable and within its available resources. The SAT Act, and in particular s 32, does not cast an investigative function on the Tribunal. These requests and applications by DTM and DAM, that we investigate and make findings regarding matters such as the rendering of invoices by the former nursing home; the sale of their parents' house and the purchase of their parents' unit, are clearly outside our jurisdiction and beyond our powers.
The second issue relates to the diet and general care of the represented person. The evidence provided by the facility sets out the health and status of the represented person in detail. For example:
1)the represented person's progressive cognitive decline is consistent with her dementia;
2)the represented person occasionally vomits after meals, said by the doctor to probably be related to gastro-oesophageal reflux and flexed posture;
3)the represented person manipulates her dentures with her tongue, which is a choking hazard;
4)the represented person's weight is monitored monthly and it is noted that a weight loss of nine kilograms has occurred over the last 12 months, with a two kilogram loss over the past four months to 47 kilograms. Her current body mass index (BMI) is 19, which is within the acceptable BMI range of 18.5 25;
5)the represented person currently receives a vitamised diet and has a history of frequently refusing food and meals. Loose bowels with green offensive stools are noted to regularly occur after evenings out with family members, and staff have queried whether beer has been ingested. This is denied; and
6)nutritional supplementation is reviewed monthly and revised as required. Current recommended daily supplementation includes supplemented porridge with breakfast, supplemented soup offered at lunch and dinner meals, fortified drinks between meals and Fortisip liquid supplement 100 millilitre twice daily. These are offered to try to achieve adequate nutritional and energy intake daily and to assist weight maintenance. It is noted however that the patient refuses any one or more of the supplements from day to day.

Findings and reasons

The Public Advocate provided the Tribunal with a report dated 11 March 2009. In that report, the delegated guardian advised the Tribunal that there had been no substantial changes in the represented person's care in the nine months since the original order for guardianship had been made. This report is set out in detail in the reasons for decision in RE JMM 2009 at [5] and [6]. The concerns raised by DTM and DAM then are the same as now, that is, soft diet, weight loss and a difficult relationship with the staff at the nursing home.
Having heard the evidence of the parties at the hearing on 29 July 2009 and having read the material filed by the applicant in this review application, in the application seeking leave to review the guardianship order, and the material filed with the Tribunal with the original application for guardianship, we confirm the order made on 6 April 2009 to refuse the application for leave to review the order appointing the Public Advocate as limited guardian for the represented person.
We are satisfied that the represented person is receiving an appropriate level of care and no evidence has been produced to us that we consider gives rise to a change in circumstances, or which would amount to any other reason to hold a review of the decision to appoint the Public Advocate. Accordingly, we confirm the order to refuse leave. The answer to each of the issues before us therefore is:
1)the Tribunal does not have jurisdiction to conduct the investigation and make the orders sought by DTM;
2)in these proceedings, the Tribunal is reviewing the decision of the single member to refuse leave under s 87(1) of the GA Act as set out in RE JMM 2009; and
3)as there has been no change in the represented person's status and there is no other valid or new reason to review the administration and guardianship orders, leave for a review of the orders should be refused.

Order

The order under review and pursuant to which leave to apply for review was refused is confirmed. The application is therefore dismissed.

I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J ECKERT, DEPUTY PRESIDENT