FE
[2021] WASAT 37
•24 FEBRUARY 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: FE [2021] WASAT 37
MEMBER: DR E MARILLIER, MEMBER
HEARD: 24 FEBRUARY 2021
DELIVERED : 24 FEBRUARY 2021
PUBLISHED : 15 MARCH 2021
FILE NO/S: GAA 289 of 2021
FE
Represented Person
Catchwords:
Review of guardianship - Who should be appointed guardian - Family conflict - Enduring supportive relationships - End of life care
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 4(3), s 4(4), s 4(7), s 40, s 44, s 51, Pt 5, Div 3
Result:
Public Advocate appointed
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
(The application was heard and decision delivered on 24 February 2021. Oral reasons for the decision were delivered on 12 March 2021. The following reasons comprise the reasons that were delivered orally, subject only to minor editing to anonymise parties, improve clarity of expression and set out).
Background
FE is a 69-year-old lady who has lived with Huntington's disease for the last 20 years. Orders were made in November 2012 appointing the Public Trustee as her plenary administrator and the Public Advocate as the limited guardian for medical treatment, contact and services decisions. Those initial orders were made in the context of conflict between her children regarding some financial decisions that had been made, including the transfer of the house title from FE and her husband EE to one of the children, and gifts and loans to other members of their family. The initial guardianship order was reviewed after one year and was continued with the same authorities. In 2017 the administration order was confirmed for another five year term. At that time the guardianship order was revoked on the grounds that informal decisionmaking by family members would be sufficient to meet her needs for substitute decision-making on personal matters at that time.
The current application came before the Tribunal via an application under s 40 of the Guardianship and Administration Act1990 (WA) (GA Act) seeking the appointment of a guardian for FE. That application was made by Joondalup Health Campus (JHC), where FE had been admitted in December 2020 having suffered a fall and a subdural haematoma. She had been discharged home on 31 December 2020 and then re-admitted on 13 January 2021 having failed to cope at home.
Prior to her admission, FE had been living in the home (whose title had been transferred to her son JE prior to the 2012 hearing), with her husband EE, and JE when he is in Perth as he works on a fly in fly out basis. EE and FE are supported by JE when he is home, and by a level four home care package, with Silver Chain as the service provider. When JE is away, EE is the main carer. The application indicated that both daughter FM and Silver Chain staff had voiced concerns about EE's capacity to make decisions in his wife's best interests. They reported that he was experiencing cognitive deficits that impacted his level of insight and that he had been mismanaging her medications.
Both the written reports and the oral evidence provided at the hearing indicated that there is significant conflict and differences of opinion within the family regarding what decisions will be in FE's best interests, particularly in regard to where she lives and what support services she should receive.
For that reason, and the detailed reasons that follow, I found that FE was in need of a guardian, and that it would be in her best interests to appoint an independent decision-maker. It was clear that all family members are devoted to FE, and all are advocating for decisions that they feel will be in her best interests. Damage is occurring to the supportive relationships around FE and it is only through the appointment of an independent decision-maker, who can stand outside the interpersonal currents and emotions of the family, and consider the recommendations of professionals with an open mind, that those relationships can be protected as much as possible, along with the best interests of FE.
I note that it is not the role of the Tribunal to determine where FE should live, or the medical treatment or support services she should receive, but only to determine who should have the authority to make the final decision regarding these matters.
The principles to be observed
In making a decision the Tribunal must observe the following principles:
•the Tribunal's primary concern is the best interests of the person concerned;[1]
•every person is presumed to be capable of looking after their own health and safety; making reasonable judgments in matters relating to their person; of managing their own affairs; and of making reasonable judgments in respect of matters relating to the estate; until the contrary is proven to the satisfaction of the Tribunal;[2]
•orders shall not be made where there is an alternative means of meeting a person's needs that is less restrictive of their freedom of decision and action;[3] and
•the Tribunal must seek to ascertain as far as possible the views and wishes of the person concerned and take them into account.[4]
[1] GA Act, s 4(2).
[2] GA Act, s 4(3).
[3] GA Act, s 4(4).
[4] GA Act, s 4(7).
If the Tribunal determines that a person is in need of a guardian, then s 44 of the GA Act explains how the decision about who may be appointed shall be determined. The Tribunal must appoint a person who is of or over the age of 18, who has consented to act, and who in the opinion of the Tribunal will act in the best interests of the person. They must not be in a position where their interests may conflict with that person, and be otherwise suitable to act as the guardian. In assessing suitability the Tribunal shall take into account as far as is possible the desirability of preserving existing relationships within the family, the compatibility of the proposed appointee with the person and their administrator, the wishes of the person, and whether the proposed appointee will be able to perform the functions vested in him or her.
In assessing how a person acts in the best interests of a represented person, the Tribunal is guided by s 51 of the GA Act. This includes a requirement that the guardian act in such a way as to maintain any supportive relationships that the represented person has. They must also work in consultation with the represented person, taking into account as far as possible their wishes, as expressed in whatever manner and as gathered from their previous actions, and act in a manner that is least restrictive of their rights while still consistent with their proper protection. They must protect the represented person from neglect, abuse or exploitation, and I note that this includes self-neglect.
The evidence before the Tribunal
The Tribunal had the reports on file from the previous matters in 2012, 2013 and 2017. In new evidence, I was assisted by medical reports from Dr A at JHC, FE's long-term General Practitioner (GP) Dr B, social worker Ms B from JHC, Silver Chain coordinator Ms T, and letters from neurologist Dr G.
The hearing was attended in person by an investigator from the office of the Public Advocate Ms ZG, and by one of FE's daughters, FM, and by telephone by the applicant Ms B, FE's husband EE and her other daughter NE.
Capacity
In her application Ms B explained that FE has advanced Huntington's disease leading to both short-term and long-term memory loss amongst other problems including frequent falls. She noted that EE has a cognitive impairment and can no longer make decisions in FE's best interests. She noted that he had been mismanaging FE's medications. Ms B stated that the current admission to JHC had been because FE could no longer cope at home with the current level of support and there was evidence of carer stress. She expressed the view that EE lacked insight into FE's care needs. She also noted that FM had concerns that JE also lacked insight into their mother's diagnosis and care needs.
The medical reports were largely consistent. It is uncontentious that FE suffers from Huntington's disease, that this is a progressive neurodegenerative condition, and that it is causing cognitive impairment. Dr A felt that it had progressed to the point where FE was incapable of all decision-making in her own best interests. Dr G confirmed the diagnosis of Huntington's disease, attached his letters to the GP and noted that he had made no formal assessment regarding capacity for guardianship. In Dr G's letters it appears that EE was expressing views regarding how much and where FE should be mobilising that were not consistent with the medical advice.
Dr B has known FE for 12 years and had seen her five times in the last 12 months. He noted that as long ago as 2007 there was evidence of cognitive impairment with a mini mental state examination score of 22/30. He was unsure about FE's current capacity to make simple financial, medical or services decisions but he was of the view that she was incapable of making complex financial, legal or accommodation decisions in her own best interests.
It was uncontentious at the hearing that as a result of her Huntington's disease, FE is no longer able to make decisions in her own best interests, and that she is therefore a person for whom orders could be made. I am satisfied that this is the case on the basis of Dr A’s opinion that she is not capable in any field of decision-making, noting that he has recently cared for FE as an inpatient, and neither Dr G not Dr B’s reports conflicts with this opinion or the observations of Ms B and the family.
Need
On review of the Public Advocate's delegated guardian's report of 2017, after which the previous guardianship order was revoked, I note that at that time revocation was sought because the guardian had not needed to make any decisions. This was because medical treatment decisions appeared to be being made informally by FE with the support of family members and her GP, Dr B. No support services were in place at that time. The contact authority was no longer required, as the family tensions that had led to the 2012 application were now resolved, and FE was enjoying time with her children and grandchildren without the need for such an authority. At that time, and in the previous hearings, decisions regarding where and with whom FE should live were not live issues.
In her service provider report to the Tribunal, Ms B indicated that Silver Chain had been providing level four home care services to FE for the past two years. She noted the close and supportive relationship that FE enjoys with her family. Ms B stated that FE relies on family members in regard to medical advice, and that she largely accepts services despite having minimal insight into her own needs. She gave the example that FE's impulsivity means that she needs strict supervision with oral intake due to issues with safe swallowing. Ms B noted that because JE is only intermittently at the property where EE and FW live, during recent renovations they had needed to move in with their daughter FM. During that time FM developed many concerns about their capacity to return home as the family was struggling to meet FE's increasing care needs despite a maximally utilised level four home care package. Ms B indicated that there appeared to be a need to consider permanent residential care.
In her service provider report Ms T noted that she had known FE for two years. Silver Chain provide seven day a week personal care plus social support, domestic assistance, podiatry and home chef meals. She also noted the supportive relationships with the family. However Ms T noted that FM, JE and NE have provided conflicting views to Silver Chain about how FE's care needs should be met in the last two months. She noted that the Public Trustee is the plenary administrator.
Ms T indicated that the current home provides no opportunity to install grab rails due to its construction from asbestos. In addition there is limited room in which to move around. I note Dr G's correspondence indicated that FE is recommended to mobilise either with a walker or by wheelchair while inside the home and only by wheelchair outside the home. Ms T noted that due to her high care needs FE requires 24/7 assistance with all activities of daily living. The Silver Chain occupational therapist had recommended modifications to the bathroom and toilet and those could not be provided in the current accommodation. She had concerns about how EE was managing the caring role due to the escalating care needs of his wife.
Ms T detailed some of the concerns and conflicting views of the three children. She reported that FM had told her she was worried about EE's management of the medication and specifically that it was being given at incorrect times and in incorrect doses. She was also concerned about management of continence products and noted that EE would leave FE in a dirty pad until the Silver Chain providers would arrive.
Ms T reported that JE had stated that he felt that he and EE could manage at home. Ms T noted that FE had been admitted to hospital in December after experiencing a fall from bed and banging her head and FM had called an ambulance. JE had stated to Ms T that he was upset about FE being admitted to hospital and felt FM was overreacting to the situation. She reported JE stating that he felt that FE belonged at home with him and EE. I note that the discharge summary from JHC from the December admission indicates that FE suffered a subdural haematoma with this fall. This is an intracranial haemorrhage, which required CT scanning, consultation with neurosurgery, and close monitoring for progression in hospital. I am concerned that JE is reported as feeling that calling an ambulance was an overreaction as this could indicate that he does not understand the seriousness of the risks and injuries that FE is sustaining.
Ms T reported that NE had stated that she found the situation between FM and JE overwhelming and was trying her best to mediate between them all for FE's sake. She also stated to Ms T that she recognised that FE's care needs appear to have increased and that she requires more support from both her children and EE.
I note that the specific level of service provision that FE receives is 45 minutes a day for personal care (shower, change of continence aids and laundry), two social support visits a week for one and a half hours at a time, weekly cleaning for one and a half hours, and a podiatry visit every six weeks. In addition 14 precooked frozen meals are provided once a fortnight through Home Chef. I was advised that this is the maximum level of care that can be provided through the level four home care package. Any additional services such as medication supervision and prompting or a second continence visit per day would be at the expense of FE or her family. I note that the report from the Public Trustee indicates that there is minimal scope to manage additional costs within her current budget.
It is clear that there are currently live issues in regard to where and with whom FE should live, and medical treatment and support service decisions. Because there is significant disagreement within the family, and EE's insight into his wife's needs and ability to consider alternatives is questioned by independent professionals, informal arrangements will not be sufficient to ensure decisions are made in FE's best interests.
I am therefore persuaded that there is a need to appoint a guardian.
Who should be appointed
Keeping in mind the principles in s 44 and s 51 of the GA Act as detailed earlier, I must consider who is suitable for appointment.
At the hearing, Ms ZG from the Office of the Public Advocate initially indicated that having had discussions with NE, she felt that NE might be suitable. She stated that she had had a long discussion with NE about getting extra services, and that NE had indicated that if her mother could not fund these, then she herself would come and do the medications every night. However NE was confident that there would be enough funding. NE noted that EE has not been claiming a carer's allowance, and that she would assist him in making such an application to Centrelink. The additional $130 per fortnight could assist with providing some additional services. I note that the evidence indicated that EE's ability to be the carer for FE is under question in the professional reports, which may negatively impact the reality of this suggestion.
Ms ZG indicated that NE had told her that she understood the reality that it was likely that FE would need residential aged care in the future. NE had indicated her willingness to serve as the guardian for her mother despite the family friction. Ms B did note that NE has very poor communication with FM now.
Ms ZG had also discussed matters with FM. Ms ZG felt that all the children had the best interests of FE at heart. She noted that FM thinks that FE's situation is at breaking point.
In regard to the home modifications, Ms ZG had also discussed these with NE. She had been informed that the kitchen and bathroom had been renovated but she was unsure if handrails can be installed. She noted the ongoing high falls risk and that quite recently FE fell and hit her head.
I sought to clarify the current status of the home modifications with NE. She informed me that there are no grab rails in the bathroom or toilet, as it is impossible to achieve this with the building material. However she informed me that JE has undertaken to build an external bathroom which would be potentially accessible via a wheelchair and be able to have rails on the walls. The current situation is that a pad has been installed and that JE will be building the rest of that facility on his swings back home. It is therefore uncertain how long it will be before the recommended accessible bathroom and toilet facilities are available at home for FE. I note that FE has been discharged from the hospital to a home where it has been found by the Occupational Therapist that her health and safety are at risk due to the lack of modifications. I am concerned that in circumstances where such modifications are underway and acknowledged as being needed, a temporary arrangement such as a transitional care or respite stay while they are completed does not seem to have been considered by the majority of the family.
Ms ZG did note that there is a past history in FE's family of delays in having additional services or installations provided. She noted that there is an urgent need to have extra services in place to manage the hygiene and medication concerns.
Ms B indicated that when she spoke to FE about the hearing, she got very agitated and tearful about the prospect of having an independent guardian. It was reported that when the public guardian was in place previously, this was a traumatic time for the family, and Ms B expressed her concern that the stress would further exacerbate things. I note however the report of the OPA guardian in 2017 that she had not needed to make any decisions during the term of that appointment, so it is unclear why it was experienced as being stressful.
Ms B noted that FE had expressed the wish to be by the beach (I note that this was phrased as 'by the beach' rather than specifically in the current house).
She indicated that there is a need for FE's desire to be by the beach to be balanced with safety considerations. Ms B indicated that the family dynamics make it increasingly difficult to achieve this balance. She expressed her concern that family members have very different ideas about how the care needs can be met. Ms B indicated that the concerns raised by Silver Chain are understood by the hospital. She stated that EE and FE are devoted to each other. She indicated that there are ongoing concerns about medication safety and hygiene. The opinion of the hospital is that EE is not able to stay on top of the care needs including laundry being done frequently enough and dealing with FE's issues with continence. At a home visit to the family property she noted that the home was not well set up for a person with FE's care needs. Ms B also acknowledged, as did NE, that FE is in a very advanced stage of her disease. I accept that there may be arguments that would favour accepting a degree of risk to maximise FE's mental well-being as she approaches end-of-life. However, this would need to be informed by a realistic assessment of the risks that are being accepted by the family. This would require the family to be open to the advice of external professionals, including occupational therapists, social workers, medical and palliative care professionals.
EE said that he thought that things were okay. He said FE was up, and moving around quite well. He felt that the supports from physiotherapy and Silver Chain were also working well. He said that he gave medications to FE morning and night. He explained that he had to organise that with the pharmacist; he got them to ring the hospital and everything was sorted out. He said that FE wanted NE to be her guardian and that he agreed.
FM indicated that she had profound concerns regarding NE's availability to take on aspects of regular care if insufficient funding existed to provide this externally. She told me that she had waitlisted her mother for a care facility that is only five minutes from the family home. She explained that she had done this in an attempt to balance FE's profound desire to be close to home and to EE, with the need to have her care needs met. She has concerns for the welfare of both her parents related to the current situation.
FM explained that when she had previously discussed matters with NE, NE had agreed that there was a need for an external guardian. FM said that she had been the advocate for her mother for ages. She explained that when her parents had moved in with her she realised that it was too much for any person to be able to cope with, and that her mother needed more care. She observed that EE was giving FE his own medication. She strongly felt that the Public Advocate needed to be appointed as the guardian for her mother.
NE explained that a lot had changed since her conversations with FM about guardianship. She felt now that there was not a lot of time left for FE. Because FE is happiest at home, she felt that that was important to consider. She said that EE was not happy about the possibility of someone who does not know FE well making decisions for her. She explained that what had changed her mind about seeking to be the guardian herself, was seeing her mum in hospital. She explained that FE looked like she was fading away before her eyes, whereas when she is at home she is brighter. EE then stated that he would like NE to be the guardian, because 'she is right behind us all the time.'
JE did not attend the hearing, as he was away for work. I therefore did not have the opportunity to hear from him directly.
In regard to who should be appointed, the level of disagreement and distress in the family demonstrated in the written and oral evidence, persuaded me that no family member could be appointed without further damaging the supportive relationships around FE. It also appeared that although NE expressed to Ms ZG prior to the hearing an openness to the fact that it might not be possible for her mother to stay at home, during the Tribunal hearing she indicated that it would be extremely difficult for her to make a decision contrary to her parents' wishes. I am not persuaded that she would be able to bring a sufficiently open mind to the alternatives that may be available to support her mother at this difficult time.
Ms ZG indicated that the evidence provided at the hearing did raise concerns regarding whether it would be possible for any family member to act as the guardian, and that she would support the appointment of the Public Advocate.
I note the evidence of Ms B, EE and NE indicating that the appointment of the Public Advocate as guardian was opposed by FE. I understand that I am making the decision to appoint the Public Advocate against the expressed wishes of FE, however I am satisfied that it is necessary and in her best interests.
The scope of the order
As stated above, there are current live issues in regard to accommodation and service provision, and there have been recent circumstances where medical treatment decisions were needed and which are likely to recur.
Despite the fracturing of relationships within the family, the evidence was that all siblings are managing to spend time with FE, and that there is no current need for a contact function.
Terms of the order
Given the level of concern amongst members of the family about the appointment of an independent guardian, a short order appears to be in the best interests of FE and her family. Because the existing administration order is for review by 22 November 2022, I will align the guardianship review date with this. This will additionally assist the family with the convenience of needing to attend on just one occasion to review both orders.
Orders
For these reasons, I made the following orders on 24 February 2021:
The Tribunal declares that the represented person, FE is:
(a)incapable of looking after her own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to her person;
(c)in need of oversight, care or control in the interests of her own health and safety; and
(d)in need of a guardian.
The Tribunal orders:
Guardianship
1.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia 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)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA); and
(d) to determine the services to which the represented person should have access.
2.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the office of the Public Advocate.
3.The guardianship order is to be reviewed by 22 November 2022.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, MEMBER
15 MARCH 2021
0
0
1