HS
[2019] WASAT 94
•21 OCTOBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: HS [2019] WASAT 94
MEMBER: MS H LESLIE, MEMBER
HEARD: 18 SEPTEMBER 2019
DELIVERED : 21 OCTOBER 2019
FILE NO/S: GAA 2267 of 2019
MATTERHS
Represented Person
Catchwords:
Guardianship and administration - Review of guardianship and/or administration - Criteria for leave to review - Change of circumstances - Any other reason - Sufficiency of evidence - Weight of evidence - Conduct of guardian in potential critical care situation
Legislation:
Guardianship and Administration Act 1990 (WA), s 42, s 44, s 51, s 86, s 87, s 87(1), s 87(5)
State Administrative Tribunal Act 2004 (WA), s 9(b), s 32(2)(b)
Result:
Leave to review granted
Representation:
Counsel:
Solicitors:
Case(s) referred to in decision(s):
LM and MM [2009] WASAT 81
RV and PL [2006] WASAT 91
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These reasons have been taken from the transcript of the hearing and have been edited to anonymise the parties and to make necessary corrections or annotations for the purpose of grammar or syntax.
The Tribunal convened on 18 September 2019 to deliver a decision in relation to matter GAA 2267 of 2019 on a preliminary point concerning the represented person, HS.
Background
HS is a 94yearold lady, in respect of whom there are guardianship and administration orders in place. There is no issue concerning her incapacity. There are several orders that are in place in relation to HS, and they have been in place now for some time. The original orders were made in 2017 (the original application). Those orders appointed the Public Trustee and the Public Advocate to look after HS's affairs and set a two year review.
The matter however came back before the Tribunal the following year on a 17A application, which is a kind of appeal application. It was heard by a three member panel of the Tribunal, and those orders appointing the Public Trustee and the Public Advocate were confirmed to be reviewed in 2020.
However, an application was subsequently made to the Tribunal in September 2018, and that resulted in a further set of orders being made by Member Mansveld. Those orders revoked the appointment of the Public Trustee and the Public Advocate and appointed HS's daughter, CS.
CS was appointed on 3 December 2018 as plenary administrator and as limited guardian with authorities to make decisions about accommodation, treatment, services, contact and personal legal matters. Those matters were set for review in 2023.
The current application was made on 3 July 2019 seeking an earlier review of those orders by the Rockingham General Hospital (Hospital or applicant) team through the person of NE who is the social worker at the Hospital.
The preliminary issue to be determined
CS, as the current guardian and administrator, opposes her replacement as either guardian or administrator. At the hearing on 12 July 2019, through her counsel, CS raised a preliminary issue concerning the need for leave to be granted to the applicant to make a review application.
Relevant legislation
The review application arises pursuant to s 86 and s 87 of the Guardianship and Administration Act 1990 (WA) (GA Act). Section 86 of the GA Act provides that:
(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.
Section 87(1) of the GA Act provides:
Any person may request the State Administrative Tribunal for leave to apply for the review of a guardianship order or an administration order.
Section 87(5) of the GA Act further provides:
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.
It is to be noted that although the Tribunal commonly determines leave applications on the documents at the time of the making of case management directions, in this case, no order granting leave was in fact made.
It appears from the file that this may have been an omission, particularly in the light of the fact that preliminary orders were determined on the documents to allow the matter to be dealt with urgently. Clearly, the member making those orders was satisfied that the application contained information that warranted an early listing. There is nothing to show that the member considered the issue of leave.
Leave was neither granted nor was it refused, nor was it listed to be determined at the time of the s 86 application as one might have expected. The issue was simply not addressed. There is no question that the guardian has the right to raise the question, and CS having done so, the Tribunal now makes a determination on the question of whether there should be leave.
The issue of leave was ventilated at a hearing of the Tribunal on 12 July 2019 and at a further hearing on 26 July 2019, at which time the question of leave was reserved, with leave for further submissions to be filed, and certain practical orders were made to that effect.
The Tribunal has the benefit of two sets of submissions from CS's counsel and a submission from the Public Advocate. That latter submission supports the granting of leave.
The hearing was initially listed urgently with the application having been made on 3 July 2019. The hearing was initially listed on the 5 July 2019 and was then moved to the 12 July 2019.
The Tribunal's consideration
To grant leave, the Tribunal must be satisfied that because of a change of circumstances or for some other reason, a review should be held. CS's submission is couched in terms of standing - that persons nominated pursuant to s 86 of the GA Act have an automatic right to review, that others do not and therefore must be granted that right, and that persuasive evidence is required to grant standing. Although perhaps it is a matter of semantics, I do not see it in quite such terms.
It is not so much a question of the personal standing of a party, as in some jurisdictions, but rather that to accept an application from anybody other than those nominated pursuant to s 86 of the GA Act, the Tribunal must accept that the grounds set out in s 87 of the GA Act are made out; that is, the Tribunal must be satisfied that there is a change in the circumstances or there is some other reason why the review should be held.
The guardianship and administration jurisdiction is a protective jurisdiction. Section 42 of the GA Act provides that the primary concern of the Tribunal shall be the best interests of the represented person.
The language of s 87 of the GA Act is wide and provides significant scope for interpretation by the Tribunal. It is accepted that it is for the applicant to satisfy the Tribunal that the grounds for review are made out. It is accepted that the purpose behind s 87 of the GA Act is to prevent multiple proceedings ventilating the same issues where such further proceedings are unnecessary or unwarranted.
It is accepted that there must be evidence available to the Tribunal upon which the Tribunal can be satisfied that the grounds have been made out. In my view however, the bar is very low, given the protective nature of the Tribunal's jurisdiction.
I refer in particular to two cases: the case of LM and MM [2009] WASAT 81, in which a daughter's 'concerns about her mother's best interests' were sufficient to grant leave. Secondly I refer to the case of RV and PL [2006] WASAT 91, in which a son's concerns that his mother 'was not receiving optimal medical care', was considered sufficient to grant leave.
The Tribunal is not bound by the rules of evidence, and it may inform itself as it sees fit. Pursuant to s 32(2)(b) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal 'is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms'.
Further, pursuant to s 9(b) of the SAT Act, the Tribunal 'is to act as speedily and with as little formality and technicality as is practicable'.
In circumstances where a represented person is subject to the decisionmaking of an appointed guardian or administrator and to that extent has their fundamental autonomy and rights removed, credible information that may give rise to a question of whether the appointed decision-maker is acting in the best interests of the person, would in my view, constitute a sufficient reason to grant leave for review. Clearly, the Tribunal has an obligation to consider the quality of the information that is provided.
It is not just any information that will suffice. Information considered to be vexatious or spurious or baseless will not cut it, nor will information considered to be biased or provided in pursuit of a personal agenda against, for example, an appointed guardian.
In my view, given the history of the orders made, in relation to the preliminary issue, I ought focus my attention on evidence relating to events subsequent to the making of the last guardianship and administration orders. Although earlier events form part of the general background to the application, clearly when the Tribunal appointed CS as guardian and administrator on 3 December 2018, it made a finding that CS was a suitable person to fill the roles. Such a finding is a necessary part of the making of a guardianship or an administration order. It is not part of this application to second-guess or to re-visit that decision.
It must be assumed that the earlier guardianship and administrator appointments made in December 2018, were made notwithstanding the available evidence as to historical and other matters which might be regarded as adverse to CS, and which was known to the Tribunal at the time. In particular, in making the decision, Member Mansveld noted that despite the difficult process involved in the Tribunal hearings of 2017 and 2018 which necessitated the appointment of both Public Advocate and Public Trustee, was the proposal of the Public Advocate, supported by the team at the relevant hospital and by the grandson Matthew E and indirectly by the applicant MB, a friend of HS that CS be appointed as guardian and administrator.
It was noted that a very special relationship exists between the represented person HS and CS.
The Tribunal also noted at the time that the plan then, as is now the case, was that CS look after HS in her (HS's) own home and that CS bring in services when required and arrange respite care, as had been approved under the ACAT approvals process.
The evidence
The current application is based on concerns raised by the Hospital arising out of a particular set of circumstances that occurred on an occasion when HS was brought to the Hospital by ambulance on 2 July 2019 following a triple zero call made by CS. The urgent application was lodged by the Hospital the day following that event, that is, on 3 July 2019.
NE, the spokesperson representing the Hospital at the hearings, gave sworn evidence. NE has no personal knowledge of the events of 2 July 2019 during the ambulance callout nor in the emergency department (ED). She spoke to the concerns of the Hospital which form the basis for the request for the review, and principally relied upon the patient care record from St John's Ambulance dated 2 July 2019 completed by the ambulance officers attending upon HS, and also the notes made by the attending ED doctors who included the resident medical officer, Dr B, the Registrar Dr T and the consultant Dr S (Collectively to be referred to as the ED record).
None of the ED doctors was available to be questioned by the Tribunal. However, the ED record referred to was provided by the Hospital, and form part of the Tribunal record.
An application to adjourn the proceedings to allow for cross-examination of the ED doctors was refused by the Tribunal at the last hearing.
CS gave sworn evidence. She disputed to a substantial extent the version of events outlined in the ED and ambulance records.
In regards to the ED record, CS's position was that the Hospital and ambulance officers were in the wrong in failing to acknowledge her position as her mother's guardian, and in failing to accept her input into the steps that were being taken with respect to her mother's care and medical management.
In relation to the wishes and fears which were said to have been expressed by HS to the ED doctors and the ambulance officers, CS's position appears to be that heed should not have been paid to those statements by the ambulance officers and the doctors, given HS's dementia.
CS claims that the Hospital is biased against her by reason of historical matters, and it is that bias that has motivated the application, rather than any reasonably-held belief that there has been a genuine set of events occurring that legitimately give rise to a bona fide belief that, as the guardian and administrator, she is not or may not be acting in HS's best interests in her decision-making.
Following the hearing, but prior to the making of this decision, CS herself filed a further document which is a combination of both submissions and a reiteration of some of her evidence, together with a number of attachments.
The Tribunal has read that document, and has given it some regard. I do not propose to set down the details of the ED records from the Hospital, to which I have referred. I incorporate the documents fully in these reasons and by reference.
Suffice to say, I accept the information provided by the ambulance officers and the ED doctors in the ED record in its entirety as an accurate and plausible description of the events of 2 July 2019, and of the observations of the authors of the documents as to the conduct and statements of both CS and HS on that date.
I am satisfied that the ED record was completed contemporaneously by date and honestly by the health practitioners involved as part of their professional duty to keep accurate clinical records. There is no reason to believe otherwise. I accept that the information is persuasive and also credible. To the extent that the information differs from CS's version of events and her evidence, albeit that that evidence is sworn, I accept the version contained in the ED record.
I do not accept as plausible the notion that some sort of bias or vendetta against CS has caused the ED doctors and the ambulance officers to manufacture a story to discredit her or to cast her in a bad light, or that the motivation of the Hospital in making the application reflects this.
I accept that the application has been made by the Hospital bona fide. Having found as I do that CS behaved in the way that was described in the ED record on 2 July 2019, and having found as I do that HS presented as described, and expressed the wishes and fears as outlined in the ED record, and HS requested not to be returned to CS's care and asked for hospitalisation, I turn then to whether such findings establish the grounds set out in s 87 of the GA Act.
Tribunal's conclusions
In my view, the findings clearly establish the grounds set out in s 87 of the GA Act. In my view, the views said to have been expressed by HS alone provide a change of circumstances that is sufficient for review.
Those views expressed in the circumstances where HS is alleged to have stated to both the ambulance officers and ED doctors that she had faked chest pain in order to escape from her daughter's care, only amplifies the basis for review. This is so notwithstanding her diagnosis of dementia.
To dismiss such concerning statements by a represented person, just because of an incapacity diagnosis without investigation by the conduct of a review, would in my view be to fail to act in the represented person's best interests.
In my view, it is a reasonable exercise of the duty of care held by the Hospital to HS as its patient to make an application for review in these circumstances. Further, even without the information about HS or the statements attributed to her, the reported conduct of CS in seeking, as I find that she did, to block reasonable medical checks for her mother, first by the ambulance officers and then by the ED doctors, when CS herself had rung triple-zero thinking that her mother may be having chest pain, is sufficiently concerning behaviour itself to constitute a sufficient reason for a review of her appointment as guardian and administrator. Such conduct clearly warrants investigation as to its propriety through the Tribunal's review process.
Further, even if it were established, which in my view it is not, that CS's conduct did not amount to the blocking of medical care, her elevated and abusive demeanour over an extended period of time in the face of the apparently quite reasonable conduct of the health professionals in circumstances where there was a legitimate concern regarding HS's claimed chest pain, and which behaviour required the involvement of multiple hospital personnel including security, the attendance of police, and ultimately the issuing of a move-on notice, raises sufficient concern regarding CS's suitability to amount to a reason for a Tribunal review on its own.
In my view, the claim that CS's position as guardian was not being respected does not justify the type of behaviour that I find has occurred.
It is acknowledged that at the time of these events, CS was HS's guardian. Even accepting that it is her right to determine the medical care that her mother is to receive, she still has an obligation to exercise her judgment in regard to HS in HS's best interests. The rights of a guardian are not absolute.
CS claims that even if she did refuse treatment, this is her call; that it is not for the health professionals to disagree with her. This is, with respect, to misunderstand the notion of medical duty of care, and the role of the Tribunal as overseer of guardianship and administration, where necessary – if necessary, urgently - where there are concerns about the actions of a guardian.
It is true that s 51 of the GA Act is subjective, in the sense that it requires a guardian to act 'according to his [or her] opinion of the best interests of the represented person'. This does not, however, authorise a guardian to act to facilitate substandard attention in a critical care situation. We are not talking about the elective refusal of treatment of a terminally-ill person. HS attended the hearings. She is mobile and alert, albeit severely demented and somewhat frail. There is no evidence of an existing advanced health directive regarding the withholding of treatment.
In my view, where there was a possibility that HS had suffered chest pain, and noting that CS herself was concerned enough to call triple zero, and to then fail to cooperate entirely with ambulance and medical services to have the possibility of cardiac problems investigated quickly and calmly, is to fail to act in the best interests of the represented person. It is certainly conduct sufficient to constitute a reason to conduct a review.
Whether it is conduct warranting the removal of the guardian and administrator has yet to be determined. The fact that a person may have been found to be suitable to be guardian or administrator at one point does not mean that they will always be considered suitable. Suitability under s 44 of the GA Act may alter, depending upon many factors, including but not limited to the guardian and administrator's own health physical and mental, his or her behaviours and actions towards the represented person, his or her behaviours and actions towards other people, and the attitude of the represented person.
In my view, the Hospital should have leave to apply for a review of both the guardianship and the administration orders, and the s 86 application should now be programmed for hearing and possibly for a mediation.
Orders
1.Leave to review the application is granted, limited to the questions:
(a)who should be appointed as administrator of the estate of the represented person and the guardian of the represented person; and
(b)the functions that any appointed guardian(s) should have.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS H LESLIE, MEMBER
21 OCTOBER 2019