| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : IT and AT [2014] WASAT 34 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : 22 AUGUST AND 20 NOVEMBER 2013 DELIVERED : 20 MARCH 2014 FILE NO/S : GAA 2778 of 2013 BETWEEN : IT Applicant
AND
AT
Represented Person
Catchwords:
Guardianship Capacity Treatment decisions Life sustaining measure Less restrictive alternative Guardian appointed
Legislation: Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43(1)(b), s 43(1)(c), s 44, s 84, Div 3 Pt 5 Pt 9C Result: Guardian appointed
Summary of Tribunal's decision: An application for a guardianship order was made for a 59-year-old man with an intellectual disability. The application was made by the man's brother because it was his view that medical treatment decisions were not being made in the man's best interests by the sister who had for many years made those decisions.
The application arose after the man had been admitted to hospital with severe pneumonia. He had required mechanical assistance with his breathing and it appeared that a further decision would be required as to whether the assistance with breathing would be needed for a longer period by way of a tracheostomy.
The brother was of the view that the man's sister had refused consent to the tracheostomy and not only was this not in the man's best interests, it was also unlawful.
The sister and other family members disputed the brother's interpretation of events and held that the decision had not yet been made at the time the man began to breathe without assistance.
The Tribunal found that the sister had been acting lawfully in making the man's treatment decisions and was entitled to consider whether a tracheostomy would be in the man's best interests.
The Tribunal decided that a guardian should be appointed for the man to ensure certainty in the decision-making. The sister was appointed because the Tribunal found she would continue to act in the man's best interests and was consultative in the decision-making process.
Category: B
Representation: Counsel:
Applicant : N/A
Represented Person : N/A
Solicitors:
Applicant : N/A
Represented Person : N/A
Case(s) referred to in decision(s):
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 AT (represented person) is a 59-year-old man with an intellectual disability who resides in a group home managed by a not-for-profit organisation (group home). He has lived in the group home for many years. 2 The represented person has a brother, IT, and sisters, SR, PG and JF. 3 The brother, IT, has made an application for a guardianship order. The relevant legislation is the Guardianship and Administration Act 1990 (WA) (GA Act). 4 The represented person is already the subject of an administration order made under the GA Act. That order, appointing the represented person's brother-in-law, SJR, was first made in 1999 by the former Guardianship and Administration Board. SJR remains the administrator and the current order is set to be reviewed by the Tribunal in September 2014. 5 It is accepted that SR and her spouse, SJR, have been the represented person's primary contact with the group home and medical practitioners for many years. 6 The application by IT for a guardianship order arises out of a hospital admission of the represented person in the middle of 2013 for the treatment of a severe respiratory condition (hospital admission). This is more fully explained below. 7 The hearings of the guardianship application took place on 22 August and 20 November 2013. The Tribunal had the benefit of evidence and submissions from IT, the represented person's sisters and brother—in-law, representatives from the group home and the Public Advocate. The Tribunal received a number of substantial written submissions and affidavits from IT and written submissions from the sisters. The Tribunal sought and received the relevant hospital records for the admission in 2013.
Decision 8 The Tribunal has decided to appoint the sister, SR, as the represented person's limited guardian to make his treatment decisions. The reasons for that decision are set out below. 9 The names of the parties have been anonymised as is required under the confidentiality provisions of the GA Act.
The application 10 IT is seeking to be appointed as guardian of the represented person to make his treatment (medical) decisions. The decisions in respect of the represented person's healthcare have been made by SR. It is the contention of IT that SR is now unsuitable to make decisions in the represented person's best interests because during the hospital admission she refused to give consent to a life sustaining measure (tracheostomy), the decision of which he further contends was unlawful because it amounted potentially to an act of euthanasia.
GA Act 11 The application made by IT falls for consideration under the provisions of the GA Act. A number of steps need to be followed by the Tribunal to get to a point where orders can be made. These steps are bound with a set of principles contained in s 4, which the Tribunal must observe. 12 The primary concern of the Tribunal shall be the best interests of the represented person (s 4(2)(a)). 13 For a guardian to be appointed for the represented person, the Tribunal must be satisfied either that: • he is incapable of looking after his own health and safety; • he is unable to make reasonable judgments in respect of matters relating to his person; or • he is in need of oversight, care and control in the interests of his own health and safety or for the protection of others; and • he is in need of a guardian (s 43(1)(b) and s 43(1)(c)). 14 The represented person is presumed to be capable of looking after his own health and safety and making reasonable judgments in respect of matters relating to his person until the contrary is proved to the satisfaction of the Tribunal (s 4(2)(b)). 15 Before a guardian can be appointed, consideration must be given as to whether there is a need for an order or whether there are other means by which the decisions that are required to be made for the represented person can be made in a manner that is less restrictive of his freedom of decision and action (s 4(2)(c)). 16 If an order is made, the Tribunal must establish the scope of the order within the parameters set down by the represented person's needs and should only make a plenary guardianship order if a limited order is not sufficient to meet those needs (s 4(2)(d) and s 4(2)(e)). 17 In the consideration of the making of an order, the Tribunal must, as far as possible, seek to ascertain the views and wishes of the represented person as expressed by him or as gathered from his previous actions (s 4(2)(f)). 18 If a guardianship order is made, then the Tribunal must decide who the guardian is to be. Section 44 provides guidance to the Tribunal in answer to that question. The Tribunal must be satisfied that the proposed guardian will act in the represented person's best interests and not be in a position where the proposed guardian's interests conflict or may conflict with his interests, and that the proposed guardian is otherwise suitable to act as guardian (s 44(1)). Suitability takes into account: • the desirability of preserving existing family relationships; • the compatibility of the proposed guardian with the represented person and the person's administrator; • the wishes of the represented person; and • whether the proposed guardian will be able to perform the role that he or she is to be given (s 44(2)). 19 The Public Advocate is only to be appointed the represented person's guardian if it is determined by the Tribunal that there is no one else suitable or willing to undertake that role (s 44(5)). 20 Section 3 states that in the making of a treatment decision, a guardian (or other person with the relevant authority) can consent or refuse consent to the commencement or continuation of any treatment for the represented person. Treatment is defined as medical or surgical treatment, including a life-sustaining measure and palliative care, or dental treatment or other healthcare. 21 A life-sustaining measure means a medical, surgical or nursing procedure directed at supplanting or maintaining a vital bodily function that is temporarily or permanently incapable of independent operation, and includes assisted ventilation and cardiopulmonary resuscitation (s 3). 22 Palliative care means a medical, surgical or nursing procedure directed at relieving a person's pain, discomfort or distress, but does not include a life-sustaining measure (s 3).
The hospital admission
The integrated progress notes 23 It is necessary at this point to define the relevant medical terms that are to be used throughout these reasons. 24 The Macquarie Dictionary (5th Ed, 2009) (Macquarie Dictionary) defines 'intubate' as 'the insertion of a tube into'; 'extubate' as 'to remove ventilation tubes from a patient' and 'tracheostomy' as 'an opening into the trachea, in some cases permanent, made surgically'. 25 In the case of the represented person these terms were used during the hospital admission in the context of using mechanical means to assist his breathing. 26 On 26 July 2013 the represented person was transferred to the Intensive Care Unit (ICU) of a teaching hospital from another hospital, suffering from respiratory failure secondary to pneumonia. The transfer to the teaching hospital occurred for reasons of 'ongoing ventilation wean and consideration of tracheostomy' (integrated progress notes (IPN) dated 26 July 2013). 27 The represented person's next of kin was noted on the IPN as '2 x sisters', and that consent had been given for intubation but not for cardiopulmonary resuscitation. It was also noted in the entry of 26 July 2013 that the represented person was reported to have a 'good quality of life'. 28 For 26 and 27 July 2013 the entries show that the represented person was sedated and intubated. He was being fed through a nasogastric tube. The represented person was seen by a physiotherapist on 27 July 2013 at 11.20 am, who stated that he was 'not for extubation this weekend'. 29 On 28 July 2013 the entry from 5 am noted that the represented person seemed comfortable and that the plan was to wean him from a particular sedative and to have a 'trachy 28/29/30.07.13? respiratory wean. All care as per NCP [plus] ICU flowchart'. There had been no reported contact with the represented person's family. 30 On 28 July 2013 at 11.40 am there was an extensive entry made relevantly stating that there was a family expectation that a tracheostomy would be undertaken and that the represented person was to have a prolonged wean from the ventilator. It was noted that this procedure was the reason the represented person had been transferred to the teaching hospital. The entry ended with a note to confirm these expectations with family. At 12 pm the entry reads 'D/W [SR] next of kin (sister): Gives consent for tracheostomy'. The entry concludes with: … family are being assembled by [SR] [and the group home] to descend upon [the teaching hospital] hoping to meet with the consultant on Tuesday pm ... meantime the inexorable juggernaut of tracheostomy prolonged ventilation wean and potential recovery to [the group home] [and/or] nursing home ([the group home] ha[s] a nursing home wing), continues. 31 The represented person was seen by a physiotherapist at 12.20 pm on 28 July 2013, who confirmed that a tracheostomy was being planned the following morning ('mane') and that 'consent implied, Rx in best interests'. 32 In the afternoon of 28 July 2013 the entry states that the group home had expressed an interest to attend the family meeting on Tuesday, 30 July 2013. 33 On 29 July 2013 the consultant made an entry at 10.30 am which reads: 34 'Events noted on admission ... now off sedation ...? extubation/tracheostomy ... Plan[:] as per ICU management'. 35 At that same time the physiotherapist noted that the represented person had his eyes open and was blinking but was not tracking or responding to commands. Later in the day the nursing notes state that the represented person was spontaneously coughing and moving his arms and legs but 'nil to command'. There were no signs that the represented person was experiencing pain. 36 On 29 July 2013 at 4 pm the entry states that the represented person was not yet ready to be extubated. On 30 July 2013 at 9.30 am it was noted that the represented person was 'less aware than yesterday'. 37 A family meeting was held at the teaching hospital on Tuesday, 30 July 2013 and was attended by a hospital doctor, the represented person's siblings, SJR and a representative from the group home. The entry states that the represented person's progress was discussed, including that extubation had not yet been possible because the represented person was not sufficiently awake. There was a discussion on the pros and cons of a tracheostomy. The conclusion of the meeting was noted as: Outcome of meeting was to aim to extubate [and] if unable to seek further guidance re: trachy[.] 38 A later entry on 30 July 2013 appears to state that the family was to meet again on Thursday (1 August 2013). 39 On Wednesday, 31 July 2013 at 11.25 am the represented person was extubated, the process being described as 'uneventful'. The plan was to contact the family and to 'continue'. The further entries on 31 July 2013 show that the represented person was not following instructions, appeared distressed at times and was unable to be reassured. The nursing staff were unsure if the represented person understood what was happening to him. An entry made by a social worker on 2 August 2013 refers to contact with the represented person on 31 July 2013, and noted that there was 'family disagreement over treatment' and concerns being raised by the medical team over who had the legal authority to make treatment decisions for the represented person. 40 An entry on 2 August 2013 records a discussion between an ICU doctor and the represented person's general practitioner. The ICU doctor states: In global view of the patient I see a reduced respiratory system mildly impaired by reduced ventilation capacity and further [at] increased risk of aspiration due to mildly impaired swallowing/coughing capacity. This indicates to me that the patient is at reduced respiratory reserve and at high risk to have further aspiration pneumonia. In taking into account that he is enjoying life in [indecipherable] I suggest it is reasonable to: • further ICU admission including intubation • NOT for tracheostomy as if patient does not have physical reserve to wean then unlikely to do well out of hospital • NOT for CPR as after every CPR high risk of brain damage in already limited mental reserve would unlikely enable patient to enjoy life again I will communicate this to family[.] 41 The represented person remained in ICU until 8 August 2013. The entries describe his slow improvement but with ongoing swallowing problems. The represented person was intermittently distressed and responded aggressively at times, needing reassurance. He would pull out his nasogastric tube. He required one to one care to prevent further issues with the tube. Once transferred to the general ward, the represented person continued to pull out the nasogastric tube. An entry by a speech pathologist on 8 August 2013 assessed a mild to moderate oral stage dysphagia (Macquarie Dictionary: 'difficulty in swallowing') and recommended a pureed diet. On 13 August 2013 the recommendation of the speech pathologist was that the represented person remains on thickened fluids and a pureed diet with full supervision. 42 The represented person was discharged on 15 August 2013.
The evidence of the parties 43 The main contention between the parties is about what happened at the family meeting at the teaching hospital on 30 July 2013, which was attended by IT, SR, PG, JF (siblings), SJR (brother-in-law), and a representative from the group home. 44 IT states that at the meeting the hospital doctor explained to the participants why consideration needed to be given for the represented person to have a tracheostomy (which, it was said, would cause him some discomfort but that there was a good chance of recovery) and that consent had initially been given for the procedure. IT states that SR and SJR then expressed having second thoughts about the tracheostomy, having been convinced of this by the hospital doctor, and that they had decided to withdraw consent (or at least they had made the decision 'in their mind' (T:54; 22.08.13)), as it was their view that the procedure would cause the represented person too much discomfort and suffering and that it was likely that the represented person would try to remove tracheostomy tube. 45 IT states that PG and the representative of the group home (MR) agreed with the decision of SR and SJR, and that JF said nothing. 46 JF states that she made no comment at the time because the hospital doctor had said to wait until Thursday (1 August 2013) when a decision would need to be made. 47 IT states that he received a telephone text message from SJR on Wednesday (31 July 2013) to advise that the hospital doctor had told him that the represented person had been extubated and that he was doing well but that he was not responding to instruction, and he hoped IT would be in attendance at the hospital soon. IT contends that this proves that the decision not to have a tracheostomy had already been made, because the hospital doctor did not wait until the Thursday (1 August 2013) before removing the mechanical breathing assistance, thereby carrying out the wishes of SR and SJR. 48 At one point in his evidence IT states that 'I admit that we had two days before the operation was to take place' (T:54; 22.08.13) but later says that: … no such meeting was ever planned or intended because the family meeting on Tuesday was to decide what was to happen on Thursday … no time had been set by the hospital. No time had been set by the family for the meeting to take place. (T:11; 20.11.13) 49 In his oral evidence given on 20 November 2013 in response to the IPN made on 30 July 2013 regarding the family meeting (see above), IT also states: Well, the doctor did tell us that they were going to try to remove the tubes … but he also told us they didn't want to do that because he was unconscious, or semi-unconscious. So he told us we had till Thursday to decide, or to remove the tubes. But, you see, they did the next day, and that's what [PG] was upset about and that's why I was upset, because they did it without telling us. (T:23; 20.11.13) 50 IT states that he visited PG on 10 August 2013 asking her about the view she had expressed at the family meeting: … she said she did not believe in mercy killing, and that she was upset because the doctors at [the teaching hospital] had removed his air-breathing tubes from [the represented person]'s throat after we had the family meeting, and did not tell her. (T:8; 20.11.13) 51 SR states that in a telephone call sometime prior to the family meeting, a hospital doctor had queried whether she was aware of what the represented person had to endure in having a tracheostomy but that despite this advice, she had at that time consented to the procedure. 52 SR states that by the time of the family meeting, the represented person had been intubated for 13 days and although he had improved, the progress was slow (for example, the represented person was not responding to the presence of family members). The family meeting had been called to discuss the options available for the represented person's ongoing treatment. The hospital doctor advised that a nasogastric tube could not be used indefinitely to assist the represented person in his breathing and the doctor again raised the necessity of a decision about whether a tracheostomy should be done. SR states that at the family meeting she had indicated that she did not want the represented person to have the tracheostomy because of the 'misery' of having the tube put into his throat and the concern that he would try to remove the tube. She says that it was a very emotional time for her observing the represented person in bed 'with all those tubes', but by the time she arrived home after the meeting, she decided she could not refuse consent to the tracheostomy, although there was a sense of waiting to see whether the represented person would improve by Thursday (1 August 2013) before a final decision needed to be made (T:34, 36, 48, 50 and 51; 22.08.13). 53 SR states that the meeting concluded with the doctor advising that the family had until Thursday (1 August 2013) to decide whether or not to consent to a tracheostomy. She says that by this time IT had contacted the Police and was doing 'this guardianship thing' (T:34; 22.08.13). 54 SR states that as it eventuated the represented person was extubated and he began to breathe unassisted, so the decision about the tracheostomy did not need to be made. 55 SJR states that in the last 12 months the represented person's health has deteriorated and his visits to the home of SR and SJR have been for a shorter duration and he does not usually stay overnight as in the past. 56 SJR states that it was very difficult to make the decision about whether further active treatment should be given to the represented person. The issue of the represented person's wishes was discussed and it was agreed that it was not possible to discuss such matters with him. SJR states that the hospital doctor provided the family with 'sobering comments' on the ability of the represented person to have and recover from the tracheostomy (T:39-42; 22.08.13). SJR says that it was accepted at the meeting that the family could not agree as to what should happen but that a decision did not have to be made until Thursday (1 August 2013). He states that he was extremely thankful that the medical team decided to extubate the represented person on the Wednesday (31 July 2013) and that the tracheostomy was no longer needed. 57 SJR states that the discussion between the represented person's general practitioner and the hospital doctor on 2 August 2013 (see above) was not communicated to the family. 58 PG states that there was much argument at the family meeting about the treatment decision to be made, and that the family were advised by the hospital doctor to think about the decision for a few days. She states that IT was very upset at the meeting and he was told by the others present that if a decision eventually needed to be made and if he disagreed with the position of SR, then 'it won't happen' (T:43; 22.08.13). PG states that she could not envisage SR making a decision alone and that she always maintained contact with her siblings. 59 In a letter from the Chief Executive Officer of the agency which manages the group home, it is stated that the represented person has been living in the group home since 1998 and during that time SR has maintained regular contact with staff and management to ensure that all of the represented person's needs have been met. 60 The representative of the group home who attended the family meeting says in her oral evidence: … as - as to what treatment they were going to do for [the represented person]. The doctor went through at great detail as to what the tracheostomy would involve and the after-care of that treatment. He also said on a few occasions that we needed to think from [the represented person]'s point of view. What would [the represented person] like? Would he want this? It would involve him, you know, not being able to eat which was one of his very few joys in life. And I was sitting next to [SJR] and we had a side conversation and I just said to - to [SJR] that I don't think [the represented person] would like this, but there was no decisions [sic] made as to whether he would have it or not. (T:52; 22.08.13) 61 The representative of the group home states a decision was going to be made on the Thursday (1 August 2013). 62 The representative of the Public Advocate states: I've met [the represented person]. I've been - had the pleasure of meeting [the represented person], who is certainly enjoying his life to the max at the moment, as much as he can. The only word of caution, then, from me would be that once you go through such extensive medical notes, if you take them out of context there's always an area where you cannot have the whole picture in front of you. So that would be the word of caution. In [the represented person]'s best interest, I think that there is a need to see this in the holistic context of which it was the one hospital admission. And certainly from my review of this, these documents that the physiotherapist, the Allied Health, the doctors, the nurses were checking with [the represented person] and noting those checks to ensure that he was able to manage that extubation, and communicating with the treating doctors at all times. (T:33; 20.11.13)
Submissions of the parties 63 It is the submission of IT that SR, supported by SJR, PG and JF, made an explicit decision at the family meeting on 30 July 2013 not to give consent to a tracheostomy for the represented person and that the decision was not in the represented person's best interests because he had a good chance of recovery. Moreover, the decision was unlawful and could have amounted to 'mercy killing' or euthanasia. 64 IT submits that the fact that the represented person was extubated on Wednesday, 31 July 2013 is evidence of the decision not to proceed with the tracheostomy because if it were the case that the family had until Thursday, 1 August 2013 to make the final decision, then the extubation would have occurred on that day. 65 IT submits that the evidence given by SR, SJR, PG and JF that the final decision had not been made at the family meeting was untrue and was contrived to fit with the changed circumstances of the represented person's extubation and his recovery without the further need for mechanical assistance with his breathing. 66 For these reasons IT submits that SR cannot continue to be the decision-maker for the represented person's medical treatment and that he should be appointed the represented person's guardian for that purpose. He says he has no objection to SR continuing to make the other decisions for the represented person, such as his accommodation needs. 67 IT submits that the decision not to consent to the tracheostomy was contrary to the family's ethical and religious beliefs. 68 SR does not support the appointment of IT as the represented person's guardian, stating that he is too 'erratic' (T:31; 22.08.13). She proposes herself as the most suitable person to be appointed to make all of the represented person's personal decisions. 69 PG and JF submit that SR and SJR are doing a marvellous job and that they should retain the decision-making authority for the represented person, having done so for the past 15 years. 70 SJR states that he opposes the appointment of IT as the represented person's guardian and, as the administrator of the represented person's estate, could not work with him. He supports the appointment of SR as the person who has had the most regular and sustained contact with the represented person and the group home for many years. 71 The view of the Public Advocate is that SR should be appointed the represented person's guardian: [T]he public advocate would support the appointment of [SR] in that position, due to the fact that a guardian must be able to communicate clearly and concisely with all family members, and from speaking to this family and meeting with the care staff and meeting with [the represented person], what - the view that the public advocate's representative has gained is this is the - a man that's well loved, well cared for, and it is public advocate's view that [SR] will continue to make decisions in [the represented person]'s best interest with the information provided from all of her siblings. And I am not sure that [IT] would be able to take on that role with that same clarity of communication. (T:36; 20.11.13)
Discussion 72 There is no dispute that the represented person is a person for whom a guardianship order can be made. He has had an intellectual disability from birth and requires 24 hour assistance in the ordinary activities of daily living. He is unable to protect his own health and safety and is in need of supervision and care. He does not have the cognitive power to make decisions in his own best interests. 73 It is common ground that SR has made whatever personal decisions have been required for the represented person - including giving consent to his treatment - it would appear at least since 1998 when he moved into the group home. 74 It is also common ground that SR has generally consulted with her siblings about important decisions for the represented person. 75 I accept that the represented person's siblings care for him deeply and want the best quality of life that can be made possible for him. 76 The represented person is in declining health. The hospital records show that his respiratory system is now compromised and that it will be difficult for him to cope with another serious bout of pneumonia. 77 The hospital admission in July and August 2013 was a traumatic event for the represented person and his immediate family. It is very unfortunate that one of the outcomes was the allegations made by IT against, in particular, SR and SJR that arose from the decision about whether or not consent should be given for a tracheostomy. 78 I accept that the family was faced with a very difficult decision at the time of the family meeting on 30 July 2013 and that in such an emotionally charged environment any person's perspective on a significant medical decision would be influenced by many factors, including the prevailing condition of the patient, the advice of medical practitioners, the opinions of family, and one's own views on what was being presented, including one's ethical code. It is highly likely that in such a situation one's views might shift quite dramatically in a relatively short period of time. 79 I am satisfied that is the situation in which SR found herself because she had been given and had accepted the role of decision-maker for the represented person, albeit in a consultative process. 80 I am satisfied on the evidence that at the conclusion of the family meeting the decision about whether or not to consent to the tracheostomy had not been finally made. It was the perception of IT that it had been made, but this is not supported by the evidence. The other family members are all agreed that they were to be given until the Thursday (1 August 2013) to decide. This is corroborated by the evidence of the representative of the group home, and the IPN of 30 July 2013 which indicates that a tracheostomy was clearly still an option. 81 I am satisfied that family members had communicated preliminary views; SR and SJR in particular expressed concerns based on medical advice about the represented person's ability to cope with the tracheostomy procedure itself and the time it might need to be in situ. There is evidence in the IPN that the represented person found it difficult to cope with the nasogastric tube and he pulled it out on a number of occasions, such that a nurse had to be present at his bedside to prevent this from reoccurring. IT made it clear that consent to a tracheostomy was the only option, and this difference of opinion was emotionally fraught and was aired at the family meeting. This, in my view, lends further support for the view that the final decision about a tracheostomy had not been made and that the hospital doctor gave the family some time (two days) to further consider their views. 82 The decision to extubate the represented person on the day after the family meeting is consistent with the outcome of the family meeting as expressed in the IPN even though it came as a surprise to some family members. The decision to extubate was a decision that rightfully belonged to the medical team, based as it would have been on a clinical opinion as to whether the represented person had regained the strength to breathe without mechanical assistance. That decision did not need consent. Where consent would have been required was the decision whether to proceed to a tracheostomy if the represented person was found not to be able to breathe on his own. That decision too would have been subject to medical opinion as evidenced in the IPN of 2 August 2013 where it appears the teaching hospital has formed a preliminary view that in future admissions a tracheostomy will not be indicated, given the represented persons depleted respiratory reserve. 83 I am satisfied that both prior to the family meeting and at the family meeting, SR was acting in a lawful capacity as the medical decision-maker for the represented person under the 'person responsible' provisions of the GA Act (see Pt 9C). 84 I am also satisfied that SR was entitled to consider whether it was in the best interests of the represented person for the tracheostomy to proceed, given that such a procedure is a life-sustaining measure and comes within the ambit of a treatment decision for the purposes of the GA Act (s 3). 85 It is my view that the represented person is in need of a guardian to ensure that in the future there is certainty in the making of his treatment decisions. Given the strong views held by IT there appears to be no less restrictive alternative to the making of an order. 86 There is no evidence that the family is otherwise in disagreement about other personal decisions that will need to be made for the represented person. IT has said that he does not wish to upset the current arrangements in this regard. 87 I am unable to form a view about what the represented person would have wanted in respect to these proceedings. 88 It is my view that it is in the represented person's best interests that SR retains the authority for his treatment decisions for the following reasons: she has undertaken this role diligently for many years, and she is supported by all the family members, except IT, and is supported by the group home and the Public Advocate. I am satisfied that SR dealt with the recent hospital admission in a sensitive and consultative way and that she maintained a dignified stance in the face of the serious allegations from IT, a situation that would have made decision-making extremely difficult. 89 I find that IT is divisive and combative and that it is not appropriate that he be considered for the role of the represented person's guardian, although I would expect SR to continue to consult with him and other family members when significant medical decisions need to be made. 90 I do not anticipate that the medical decision-making will be any easier in the future, but SR has consented to her appointment and she should be given the opportunity to continue in the role in the devoted way she has supported the represented person over many years. 91 Because of his intellectual disability the represented person will always need someone to make treatment decisions for him. I will therefore make the guardianship order reviewable in five years, the maximum period available to me under the GA Act (s 84).
Order 92 On an application for the appointment of a guardian for the represented person determined by Senior Member J Mansveld on 17 March 2014: 93 The Tribunal declares that the represented person: (a) is incapable of looking after his own health and safety; (b) is unable to make reasonable judgments in respect of matters relating to his person; (c) is in need of oversight, care or control in the interests of his own health and safety; and (d) is in need of a guardian, and the Tribunal orders that: 1. SR of [address deleted] is appointed limited guardian of the represented person with the following function: (a) Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person. 2. This order is to be reviewed by 17 March 2019. |