JC and BP
[2008] WASAT 184
•19 AUGUST 2008
JC and BP [2008] WASAT 184
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 184 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2352/2007 | 18 JANUARY 2008 AND 1 APRIL 2008 | |
| Coram: | MS J TOOHEY (SENIOR MEMBER) MS M JORDAN (SENIOR SESSIONAL MEMBER) DR D STEPNIAK (SENIOR SESSIONAL MEMBER) | 19/08/08 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | JC BP |
Catchwords: | Guardianship Review of order appointing Public Advocate limited guardian Application by daughter to be appointed Application opposed by siblings Continuing conflict about where the represented person should live Whether applicant suitable to be appointed guardian Difference between suitability as carer and suitability as guardian Views and wishes of the represented person Whether in represented person's best interests for applicant to be appointed |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4(2)(c), s 43, s 44(5), s 51(2), s 86, s 119, Div 3, Pt 5 |
Case References: | Nil |
Summary | The applicant sought review of an order appointing the Public Advocate limited guardian for her mother, BP. The Public Advocate had decided that BP should continue to live in a nursing home in a country town some distance from the applicant; the applicant maintained her mother wanted to live with her and that it was in her best interests to do so.,Against a background of long-standing conflict with the applicant, BP's three other adult children opposed the application, maintaining their mother wished to remain where she was and that it was in her best interests to do so. ,The Tribunal accepted that BP had throughout the proceedings expressed the wish to live with the applicant. However, in light of evidence from her doctor about the extent of her cognitive impairment, and evidence from her other children, the Tribunal was not satisfied that her wishes as stated were a reliable indication of what her wishes would have been had she not been impaired, or that they outweighed other considerations of her best interests.,The Tribunal accepted that the applicant, who had nursing qualifications, could provide care for her mother at home, although it doubted that such an arrangement was sustainable long-term. However, it was not satisfied, in all the circumstances, that the applicant was a suitable person to be appointed guardian.,The Tribunal was not satisfied that the applicant appreciated sufficiently the obligations of a guardian. Despite her good intentions towards her mother, the Tribunal was not satisfied that she would set aside her long-standing conflict with her siblings, her fixed ideas about her mother’s needs and wishes, and her own need to care for her mother, and act in her best interests within the meaning of the Guardianship and Administration Act 1990.,None of BP’s other children proposed themselves as guardian because of the continuing conflict with the applicant. The Tribunal found that it was in BP’s best interests to have an independent guardian and confirmed the appointment of the Public Advocate. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : JC and BP [2008] WASAT 184 MEMBER : MS J TOOHEY (SENIOR MEMBER)
- MS M JORDAN (SENIOR SESSIONAL MEMBER)
DR D STEPNIAK (SENIOR SESSIONAL MEMBER)
- GAA 2433 of 2007
- Applicant
AND
BP
Represented Person
Catchwords:
Guardianship Review of order appointing Public Advocate limited guardian Application by daughter to be appointed Application opposed by siblings Continuing conflict about where the represented person should live - Whether applicant suitable to be appointed guardian Difference between suitability as carer and suitability as guardian - Views and wishes of the represented person Whether in represented person's best interests for applicant to be appointed
(Page 2)
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2)(c), s 43, s 44(5), s 51(2), s 86, s 119, Div 3, Pt 5
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr R Grayden
Represented Person : N/A
Solicitors:
Applicant : Hammond Worthington
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 The applicant sought review of an order appointing the Public Advocate limited guardian for her mother, BP. The Public Advocate had decided that BP should continue to live in a nursing home in a country town some distance from the applicant; the applicant maintained her mother wanted to live with her and that it was in her best interests to do so.
2 Against a background of longstanding conflict with the applicant, BP's three other adult children opposed the application, maintaining their mother wished to remain where she was and that it was in her best interests to do so.
3 The Tribunal accepted that, throughout the proceedings, BP had expressed the wish to live with the applicant. However, the Tribunal was not satisfied that this was a reliable indication of what her wishes would have been had she not been impaired, or that it outweighed other considerations of her best interests.
4 The Tribunal accepted that the applicant, who had nursing qualifications, could provide care for her mother at home, although it doubted that such an arrangement was sustainable longterm. However, it was not satisfied, in all the circumstances, that the applicant was a suitable person to be appointed guardian.
5 The Tribunal was not satisfied that the applicant appreciated sufficiently the obligations of a guardian. Despite her good intentions towards her mother, the Tribunal was not satisfied that she would set aside her longstanding conflict with her siblings, her fixed ideas about her mother's needs and wishes, and her own need to care for her mother, and act in her best interests within the meaning of the Guardianship and Administration Act 1990 (WA).
6 None of BP's other children proposed themselves as guardian because of the continuing conflict with the applicant. The Tribunal found that it was in BP's best interests to have an independent guardian and confirmed the appointment of the Public Advocate.
(Page 4)
Background
7 The applicant seeks review of an order made by the Tribunal on 27 April 2007 appointing the Public Advocate limited guardian for her mother, BP, to:
i) decide where, and with whom, BP should live, whether permanently or temporarily;
ii) consent on her behalf to medical treatment;
iii) determine what, if any, contact she should have with others;
iv) determine what services she should receive; and
v) consent to the use of chemical or physical restraint.
8 This matter has a long and difficult history on account of continuing conflict between JC and her three siblings as to where their mother should live. It is relevant to summarise the history here.
The first application
9 In January 2005, BP's eldest daughter, PT, lodged an application with the Tribunal proposing she be appointed guardian for her mother. It is not necessary to set out here the details of the application other than to say that PT's siblings, GP and KT, supported the application; all opposed JC's proposals to move their mother from the nursing home where she had lived since mid2004 to JC's home in Perth, and to take her to Melbourne for a holiday.
10 At a hearing on 4 March 2005, the Tribunal was satisfied, on the evidence before it, that BP was not capable of deciding for herself matters relating to her accommodation and medical treatment. It decided she was in need of a guardian to consent to treatment and appointed her son, GP, her limited guardian for that purpose. The Tribunal also gave GP authority to consent to his mother being restrained by means of medication and directed him to inform himself further about the particular medication and its effects, and whether it was administered for the purposes of treatment or restraint. His appointment was for three months pending a decision about whether BP was in need of a guardian to decide where, and with whom, she should live.
(Page 5)
11 The Tribunal heard that BP had at times expressed the desire to live at her daughter's home. JC's siblings, however, contended that their mother's cognitive impairment meant she was no longer able to express her views and wishes in any meaningful way; they claimed JC would influence their mother to say she wanted to live with her when it had always been her wish to remain in the town she was in.
12 Despite their differences, BP's children said they wanted to try to reach agreement between themselves about where their mother should live and wanted to try mediation. The Tribunal arranged a mediation but they could not reach agreement.
The second hearing
13 At a further hearing on 16 August 2005, the parties were still in dispute about where BP should live. The Tribunal was satisfied she remained incapable of making relevant decisions for herself.
14 A report from BP's consultant physician stated that she continued to express a wish to live with JC but questioned BP's insight into the implications of such a decision and her possibly unrealistic expectations of the care JC could provide. Nevertheless, the physician reported, none of the apparent difficulties with such an arrangement appeared insurmountable, although how long JC could care for mother at home, given the level of care she required, needed to be considered.
15 JC's siblings maintained their view that BP's expressed wishes changed from time to time and were not a reliable means of assessing her true wishes. They said that, even though their mother could no longer fully appreciate where she was, she would want to remain in the nursing home in the town where she had lived with their father for many years and where he was buried.
16 In light of the continuing conflict about where BP should live, whether she was able meaningfully to express her wishes, and what was in her best interests, the Tribunal appointed the Public Advocate her limited guardian to make decisions about her accommodation, what services she should receive and with whom she should have contact; it revoked GP's appointment to consent to medical treatment and restraint and gave that authority to the Public Advocate as well. The order was to be reviewed after 12 months.
17 Following the hearing, the Public Advocate decided it was in BP's best interests to remain in the nursing home.
(Page 6)
The first review
18 On 11 August 2006, the Tribunal reviewed the order. JC continued to maintain that her mother wished to live with her and her siblings maintained their opposition to that proposal.
19 The Public Advocate reported that she considered it in BP's best interests, in all the circumstances including the level of care she received there, to remain in the nursing home. The Public Advocate reported, however, that she had been discussing with JC a proposal for her mother to stay with her from time to time for respite.
The second review
20 On 26 March 2007, the Public Advocate lodged an application for review of her appointment following an assessment by a consultant geriatrician which suggested that BP might be capable of making relevant decisions for herself and might not be in need of a guardian.
21 Since the order had been confirmed in August 2006, BP had spent two respite visits at JC's home. During the second visit she fell and had to be admitted to hospital and the Public Advocate had decided the visits should cease. JC asked the Public Advocate to review her decision and requested an assessment by a consultant geriatrician of her mother's capacity to make decisions for herself.
22 The Public Advocate reviewed her decision and in March 2007 agreed the respite visits should resume. On the first visit, however, JC advised the nursing home that BP would not be returning and, despite the Public Advocate having authority in relation to BP's medical treatment, JC made various arrangements about her medications without consulting the Public Advocate. It is not suggested that, in doing so, JC acted to her mother's detriment but her failure to consult the Public Advocate underlines her determination to assume responsibility for BP.
23 At the time of the review hearing on 27 April 2007, BP was still at JC's home. The Tribunal had before it the report of the consultant geriatrician who had been provided with copies of reports from BP's treating doctors. His report stated that BP had volunteered that she wanted to live with JC; she was alert but lacked insight into the level of care she needed and he did not feel she had the capacity to decide where she should live.
(Page 7)
24 It is not necessary to detail the evidence here other than to say that the geriatrician concluded, and the Tribunal was satisfied, that BP remained a person for whom a guardian could be appointed.
25 JC and her siblings continued to be at odds about where their mother should live and what meaning could be attributed to her wishes as expressed. The Tribunal reappointed the Public Advocate for two years.
The current review
26 On 26 November 2007, JC lodged an application for review of the Public Advocate's appointment. Section 86 of the Guardianship and Administration Act 1990 (the Act) requires her to have the leave of the Tribunal before the application for review can proceed. At a directions hearing on 18 January 2008, leave was granted and the proceedings adjourned for submissions on a range of questions raised by the application and so that the Tribunal could hear from the doctor who has been BP's general practitioner for many years.
27 On 1 April 2008, the Tribunal conducted a hearing at which JC was legally represented.
BP's attendance at the hearing
28 It was put to the Tribunal by counsel for JC that the Tribunal should hear from BP so that she could make clear her wish to live with JC.
29 The Tribunal has decided against requiring BP to attend the hearing. She is elderly and it has been apparent in the past that attending what has turned out to be a lengthy, contested hearing can be distressing for her. We do not think she should be subjected unnecessarily to that stress. Her lack of capacity to make decisions for herself is not in dispute. Nor is it in dispute that she has said in the past, and continues to say, that she wants to live with JC; the question is what the expressions of her wishes means.
BP's capacity to make decisions and need for a guardian
30 It is not in dispute on this review that BP is someone for whom an order can be made under s 43 of the Act because she is no longer capable of looking after her own health and safety or making reasonable judgments in respect of matters relating to her person. In particular, although there is some difference of opinion as to its underlying cause, there is no dispute that she has a cognitive impairment and that her shortterm memory is severely impaired. It is not in dispute that she needs someone to make decisions on her behalf about where, and with whom, she should live, her
(Page 8)
- medical treatment and with whom she should have contact. Who should make those decisions remains in dispute.
Is there a less restrictive means of meeting BP's needs
31 The Act provides that the Tribunal shall not make a guardianship order if the needs of the person concerned can be met by other means less restrictive of the person's freedom of decision and action: s 4(2)(c).
32 In this case, decisions could be made for BP without a guardian being formally appointed. Decisions about where she should live could be made by agreement between her children; consent to medical treatment could be given pursuant to s 119 by PT who is her eldest child and nearest relative for the purposes of the Act.
33 At the heart of this matter, however, is the continuing conflict between JC on the one hand and her three siblings on the other, about where BP should live. JC continues to maintain that her mother's best interests would be served by her own appointment as guardian and a consequent decision that her mother live with her.
34 The Public Advocate maintains her view that it is in BP's best interests to remain in the nursing home. Other than JC, all of her children support the continued appointment of the Public Advocate and the consequent decision that their mother remain in the nursing home.
The issues
35 The Act provides that the Tribunal shall not appoint the Public Advocate unless there is no other person suitable and willing to be appointed: s 44(5).
36 Only JC proposes herself as an alternative to the Public Advocate. Her siblings say that JC's entrenched opposition to them and her fixed position on matters concerning their mother would make the appointment of any one of them unworkable.
37 JC asserts that she is a suitable person to be appointed guardian and, in those circumstances, the Public Advocate should not, and cannot, be appointed. She continues to assert that her mother's expressed wish is to live with her.
38 The issues to be determined are:
(Page 9)
- i) whether JC is a suitable person to be appointed guardian for BP;
ii) what are BP's views and wishes; and
iii) how can BP's best interests be served.
Is JC a suitable person to be appointed guardian
39 It is not for the Tribunal to make the decision that a guardian is appointed to make; its role is to decide whether BP is in need of a guardian and, if so, for what purposes, and who the guardian should be. However, the decision a proposed guardian intends making may be relevant to their suitability for appointment.
40 Both the Public Advocate and JC have stated clearly what decision, if appointed, they would make concerning where BP should live.
41 The Tribunal has an extensive, detailed report from the Public Advocate outlining BP's current care needs, how those needs are met at the nursing home, whether they could be met in JC's home, and why the Public Advocate says that the appointment of JC as guardian would not be in her mother's best interests. It also has extensive submissions from JC in support of her own position, including how she would care for her mother if she was to live with her.
42 The Tribunal has heard from BP's general practitioner who has treated her for nearly 20 years. He sees her weekly at the nursing home although not necessarily to treat her; occasionally, he will see her while passing through to visit someone else. He does not dispute JC's capacity to care for her mother. He recognises that she is an enrolled nurse and has other qualifications that make her a suitable carer. However, his view is that BP (and this is supported by an ACAT assessment) needs 24 hour care seven days a week. He doubts JC's ability to provide that level of care in any sustained way; he does not dispute her ability to provide the care itself. JC's siblings share his concerns.
43 JC argues strenuously that she is a suitable person to care for her mother. The Tribunal does not doubt her commitment and her qualifications, or that she can provide suitable care for her mother. However, that is a different question from whether she can sustain indefinitely the level of care her mother needs and, importantly, it is a different question from whether she is a suitable person to act as guardian and make decisions on behalf of her mother; it is a difference that JC appears not to appreciate, possibly because she does not understand the role of guardian or,
(Page 10)
- possibly, because she cannot separate the role of guardian from that of carer.
44 The Public Advocate submits that JC is not a suitable person to be appointed guardian. The Public Advocate does not dispute that JC is a suitable carer for her mother but she says that JC is a person who is fixed in her ideas; she is driven by her own need to care for her mother and her fixed ideas make it very difficult for her to take others' views into account.
45 The Public Advocate has provided the Tribunal with documents that might be described as BP's current care plan at the nursing home. They support the view that BP requires fulltime care 24 hours a day, seven days a week. JC maintains that she can provide this level of care. She refers to other members of her immediate family, neighbours, doctors and ambulance, all of whom she says could provide her with assistance, if necessary, so that she can care for her mother 24 hours a day.
46 JC does not appear to the Tribunal to have given adequate consideration to the details of how she would provide the level of care her mother requires or how she would sustain that level of care indefinitely. For instance, when the Tribunal asked her what she would do if the arrangement did not work out, whether temporarily or for longer, she seemed unable even to contemplate that it might not be possible for her to care for her mother 24 hours a day for an extended period; she referred to her son and other family members being only 15 minutes away but did not seem to recognise that there might be times when they might not be available.
47 It must be said that many families muddle along without any clear care plan for an elderly parent and that such arrangements may be in their parent's best interests, given the available alternatives. It is hard to argue with the principle that an elderly parent may be better off cared for at home by family. However, that is not the issue in this case.
48 A guardian must do more than just provide care; she or he must act in the best interests of the person they represent which includes acting, as far as possible, in accordance with their wishes as expressed, in whatever manner, or as gathered from their previous actions, and in such a way as to maintain any supportive relationships they have: s 51(2)(e) and (g).
49 Currently, GP, who lives in the same town as BP, visits her for several hours every Sunday and is her most frequent visitor. The Tribunal accepts his evidence, and that of PT and KT, that their parents assigned him a special
(Page 11)
- place in the family because he is the only son and that in the past BP looked to him to look after her affairs; it was largely on this basis that he was appointed by the Tribunal her administrator some time ago.
50 The Tribunal accepts that GP's regular visits are important to BP. However, when the Tribunal asked JC whether she thought it would make any difference if GP could no longer visit weekly because of distance, she said it did not; she maintained that, while family is important to BP, it makes no difference which family member; in effect it could be anyone. This statement is difficult to reconcile with JC's insistence that her mother wants to live with her and it underscores the extent of the conflict between JC and her siblings and her inability to truly recognise their importance to their mother.
51 Accepting what all parties say, that BP's family is important to her, it is in her interests that they all be able to visit her even if her appreciation of their presence is limited and her memory of visitors almost nonexistent. If she remains in the nursing home, all family members including JC can visit her there. If BP lives at JC's home, there is a strong chance that the conflict with the siblings will be such that visits will be limited and distance will inevitably make GP's frequent, regular visits less frequent.
52 The Public Advocate has said that, subject to anything indicating it would not be in BP's best interests, she could continue to go on visits to JC's home; she would not be precluded from spending time there.
BP's views and wishes
53 It is not in dispute that, throughout these proceedings, BP has expressed a desire to live with JC. At an early hearing she stated her wish to live with her daughter, although it was difficult to know at the time whether that was a spontaneous expression of her wishes or a response to questions put to her during the hearing, including by JC. At other times JC has submitted handwritten notes from her mother stating her wish to live with her; most recently she has submitted an affidavit sworn by BP on 8 January 2008 again stating this wish.
54 The question for the Tribunal is what the expression of BP's wishes means and what weight it should be given.
55 The Tribunal asked BP's doctor what weight he considered could be put on BP's expression of her wishes. In his view, she seems not to fully understand what she means when she states her wishes and does not understand the
(Page 12)
- implications of the wishes she expresses. He is not sure whether there is any distress attached to whether she remains at the nursing home or goes to JC's home; she does not seem to benefit from the visits to JC's home, not because there is no benefit to the visits but because she simply cannot remember the visits and in that sense gains nothing from them.
56 The doctor's views are based on his long association with BP and on seeing her regularly at the nursing home. He tells the Tribunal that, after respite visits to JC's home, BP had no memory of even being there, even after visits of one to two weeks; she could not even tell him that she had been away.
57 The doctor tells the Tribunal that BP's lucidity fluctuates and that, on some days, she will recognise him but on other days she will not. When asked about the affidavit sworn by her in January 2008 stating her wish to live with her daughter, he said he was surprised that she could give that amount of detail.
58 The Tribunal has been told, and accepts, that prior to her cognitive decline, it was BP's express wish that she live in the town where she and her husband had lived for many years, where they had friends and where they had generally enjoyed life together.
59 The Tribunal is not satisfied that any weight can be placed on BP's current stated wish to live with her daughter. We are not satisfied that what she has said throughout these proceedings, during which time her health and cognitive abilities have declined, reflects her true wishes. We prefer the evidence of her doctors and other children that it was always her wish to remain in the town where she is now. That is not to say that she does not enjoy her visits to JC's home.
Conclusion
60 It is not merely because there is conflict between the siblings that the Tribunal considers the Public Advocate should be appointed guardian for BP. Conflict of itself does not necessarily mean an independent guardian needs to be appointed. The question is whether the conflict affects a person's suitability to act as guardian.
61 The Tribunal finds that an independent decisionmaker is required because JC, while a suitable carer, is not a suitable guardian. The Tribunal is not satisfied that she would put aside her conflict with her siblings and put her mother's best interests first as regards her siblings. In particular, the Tribunal does not accept JC's assurances that
(Page 13)
- her siblings could visit their mother at her home at any time. She has demonstrated to the Tribunal a singularity of mind and purpose that suggests she will not be able readily to accommodate her siblings even if to do so would be in their mother's best interests.
62 It has been put to the Tribunal by counsel for JC that there are several options available for the appointment of a guardian including a split appointment (that is, functions allocated between the Public Advocate and JC), a joint appointment of the Public Advocate and JC, and a three-month trial of JC's appointment. However, in light of JC's continuing opposition to the Public Advocate we are not satisfied any shared or joint appointment is workable.
63 We have heard that BP has said to family members that all she wants is for the "Good Lord to take her". It is not difficult to imagine the distress that this continuing conflict and proceedings before the Tribunal might cause her even if her understanding is limited. It is important that she be settled and peaceful. A decision to appoint JC would mean a decision that BP would move to her home; it would inevitably entail some measure of uncertainty, a possibility that JC would suffer from carer stress and that BP might have to return to the nursing home. It is not at all clear, if that happened, that she could return to her current nursing home; it is possible a new home would have to be found for her.
64 We find that BP continues to be in need of a guardian, that JC is not a suitable person to be appointed guardian and that it is in BP's best interests that the appointment of the Public Advocate be confirmed. The appointment will be for five years.
Orders
1. The Tribunal confirms the appointment of the Public Advocate as limited guardian 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) Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA),
- to consent to any treatment or health care of the represented person;
- d) To determine what contact, if any, the represented person should have with the others and the extent of that contact;
e) To determine the services to which the represented person should have access; and
f) To consent to the use of chemical or physical restraint in respect of the represented person and to decide matters incidental thereto.
- 2. The order will be reviewed by 1 April 2013.
I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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