JMM

[2015] WASAT 54

JMM [2015] WASAT 54

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2015] WASAT 54
Published:	20/05/2015
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:3315/2014	Heard:	6 OCTOBER 2014
Coram:	MS H LESLIE (SENIOR SESSIONAL MEMBER)	Delivered:	28/10/14
No of pages:	17	Judgment Part:	1 of 1
Result:	Public Advocate appointed as limited guardian for accommodation, treatment, service and contact decisions
Category:	B
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Parties:	JMM
Catchwords:	Guardianship and administration ­ Capacity ­ Need for orders ­ Suitability ­ Public appointment ­ Chemical restraint ­ medical treatment
Legislation:	Guardianship and Administration Act 1990 (WA), s 4(2), s 4(7), s 44, s 44(5), s 86, s 87 State Administrative Tribunal Act 2004 (WA), s 77
Case References:	Nil
Summary	JMM suffered from severe dementia.  The care facility at which JMM resided with her husband sought the replacement of joint guardians who were said to be refusing to allow a trial of medication that would likely alleviate JMM's anxiety and agitation and ameliorate associated behavioural changes that were distressing to her, challenging for staff (at the non-dementia specific facility), risky for JMM and other residents and which, unchecked, may put JMM's tenure at the facility at risk possibly resulting in the required separation of her and her husband.  Over the course of nine months, the guardians had countermanded instructions by doctors for medication to be used to manage anxiety and agitation and were refusing to allow a short hospital admission to allow a trial of new mediation which was thought to likely be of benefit, notwithstanding the confirmation of the proposed plan as appropriate by a geriatrician whose advice they had independently sought.  The guardians sought to have further opinions on the subject obtained.  There were factual issues as to the level of the behaviours complained of and allegations that the question was more about management issues for the facility than the best interests of JMM.,In these circumstances, the Tribunal determined that it was in JMM's best interests for her guardians to be replaced.,The Public Advocate was appointed as her limited guardian for accommodation, treatment, services and contact decisions with the order to be reviewed in one year.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : JMM [2015] WASAT 54 MEMBER : MS H LESLIE (SENIOR SESSIONAL MEMBER) HEARD : 6 OCTOBER 2014 DELIVERED : 28 OCTOBER 2014 PUBLISHED : 20 MAY 2015 FILE NO/S : GAA 3315 of 2014

GAA 3428 of 2014

BETWEEN : JMM

Represented Person

Catchwords:

Guardianship and administration ­ Capacity ­ Need for orders ­ Suitability ­ Public appointment ­ Chemical restraint ­ medical treatment

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 4(7), s 44, s 44(5), s 86, s 87

State Administrative Tribunal Act 2004 (WA), s 77

Result:

Public Advocate appointed as limited guardian for accommodation, treatment, service and contact decisions

Summary of Tribunal's decision:

JMM suffered from severe dementia. The care facility at which JMM resided with her husband sought the replacement of joint guardians who were said to be refusing to allow a trial of medication that would likely alleviate JMM's anxiety and agitation and ameliorate associated behavioural changes that were distressing to her, challenging for staff (at the non-dementia specific facility), risky for JMM and other residents and which, unchecked, may put JMM's tenure at the facility at risk possibly resulting in the required separation of her and her husband. Over the course of nine months, the guardians had countermanded instructions by doctors for medication to be used to manage anxiety and agitation and were refusing to allow a short hospital admission to allow a trial of new mediation which was thought to likely be of benefit, notwithstanding the confirmation of the proposed plan as appropriate by a geriatrician whose advice they had independently sought. The guardians sought to have further opinions on the subject obtained. There were factual issues as to the level of the behaviours complained of and allegations that the question was more about management issues for the facility than the best interests of JMM.

In these circumstances, the Tribunal determined that it was in JMM's best interests for her guardians to be replaced.
The Public Advocate was appointed as her limited guardian for accommodation, treatment, services and contact decisions with the order to be reviewed in one year.

Category: B

Representation:

Counsel:

Represented Person : In person

Solicitors:

Represented Person : N/A

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

REASONS FOR DECISION OF THE TRIBUNAL:

Background

1 On 17 February 2014, JMM's daughter, SW, and her stepson, RJM (who are also her attorneys under an enduring power of attorney), were appointed jointly as her limited guardians for five years to make accommodation, treatment, services and contact decisions. The Tribunal was satisfied that JMM suffered from a severe form of dementia.

2 Six months later on 11 August 2014, KR, the facility manager of the care facility (ARC) in which JMM resides, filed an application under s 87 of the Guardianship and Administration Act 1990 (WA) (GA Act) seeking leave to apply for a review of this order on the basis that the guardians '[did] not always act in the best interests of [JMM]'. The applicant sought the appointment of an alternate guardian.

3 By order made 18 August 2014, leave was granted to the applicant to apply for review but limited to the question of who should be appointed as guardian of the represented person, the Tribunal being of the view that there was no issue as to incapacity or as to the need for a limited guardianship order in the terms specified in February 2014. Various directions were made programming the matter for hearing including an order that the applicant's s 87 application be accepted as an application for review under s 86.

4 The matter was heard on 6 October 2014. The hearing was attended by JMM, her husband RMM, her daughter SW, her stepson RJM, her granddaughter RW, the applicant KR, GB the Chief Executive Officer of ARC, AC, a representative from Advocare and two representatives from the Public Advocate being DD as advocate and AR observing.

5 Having reserved its decision at the conclusion of the hearing on 28 October 2014, the Tribunal made an order revoking the previous order for guardianship made 17February 2014 and appointed the Public Advocate as limited guardian with authority to make accommodation, treatment, services and contact decisions.

6 The following are the reasons for that decision pursuant to s 77 of the State Administrative Tribunal Act 2004 (WA).

The relevant legislation

7 The relevant legislation is the GA Act.

8 The GA Act requires the Tribunal to proceed through a number of steps in order to arrive at a decision about the appointment or reappointment of a guardian, and to make findings about various matters along the way.

9 Because of the limited scope of the leave granted to the applicant, some of these matters do not need to be addressed in this review. Incapacity and need are assumed as referred to above. The sole issue for determination in this matter is who is/are the appropriate person(s) to hold appointment as guardian for JMM.

10 Section 44 of the GA Act provides guidance to the Tribunal in the answer to that question. The Tribunal must be satisfied that the proposed guardian will act in JMM's best interests; not be in a position where the proposed guardian's interests conflict, or may conflict, with her interests and that the person otherwise be suitable to act as guardian. Suitability takes into account the desirability of preserving existing family relationships; the compatibility of the proposed guardian with JMM; JMM's wishes; and whether the proposed guardian will be able to perform the role that he or she is given.

11 The Public Advocate is able to be appointed JMM's guardian only if it is determined by the Tribunal that there is no one else suitable or willing to undertake that role: s 44(5) of the GA Act.

12 The Tribunal must as far as possible seek to ascertain JMM's views and wishes, but ultimately must make a decision in what the Tribunal determines to be in her best interests: s 4(2) and s 4(7) of the GA Act.

Relevant history

13 In addition to the oral evidence of the parties at the hearing, the Tribunal had the benefit of certain medical and other reports containing pertinent information to which reference will be made.

14 The background to the matter is as follows.

15 JMM is a committed Seventh Day Adventist and has been all of her life. She has been an integral part of the ARC community for many years, having worked there for about 40 years, at one time as the Director of Nursing. Her husband resides at ARC. Initially JMM resided with her husband in the low care wing at ARC but in December 2013, it was felt necessary to transfer her from the low care wing to the high care wing following what was described by KR as a rapid and steep decline in her dementia condition, and the associated change in her care needs.

16 It appears that issues arose at the time of this transfer with JMM's family regarding the transfer itself, specifics of the subsequent treatment of JMM and the degree of involvement of and consultation with family members by ARC staff and the professionals charged with JMM's care. These matters appear to have precipitated the application for a guardianship order in early 2014.

17 It appears that the issues did not resolve notwithstanding the making of the order, hence ARC's application for a change in guardianship.

The applicant's position

18 The principal issue is said to be the introduction and use of medication to treat JMM's anxiety and agitation and to manage her related distressed behaviour.

19 In her request to the Tribunal for an urgent hearing, KR confirmed that at the time of her original admission, JMM was under the care of her general practitioner, Dr K; that since admission her behaviours have been difficult to manage but 'declined significantly [after] December 2013'; that Dr K was 'very supportive' of the situation and prescribed medication (which appears to have been low dose Risperidone) to reduce JMM's anxiety and agitation, and that this was frequently of good effect. KR stated that subsequently, SW insisted that all such medication be ceased. It appears that her request was acceded to by Dr K.

20 KR stated that in January 2014, JMM's behaviour deteriorated to such an extent that it was felt she was experiencing a psychotic episode and so an ambulance was called and JMM admitted to hospital.

21 She was then seen by a psychiatrist, Dr A, from the relevant Older Adult Mental Health Service in late January. His letter to Dr K, of which the Tribunal received a copy (and incorporates into these reasons by reference), recites the issues and concerns at the time. Dr A recommended a trial of a medication Sertraline.

22 Input was also sought by ARC from the Dementia Behaviour Management Advisory Service (DBS) to assist in the drawing up of strategies (some of which were the use of light therapy, distraction measures and exercise therapy) to try and manage the situation; however, KR states this was to no avail.

23 KR stated that, notwithstanding their apparent agreement with Dr A's proposals, SW and RJM refused to follow the advice given and refused to allow the use of the recommended medication despite JMM's levels of agitation, anxiety and upset. It appears from KR's comments that JMM required 1:1 oversight and at times 2:1 staff intervention to keep her safe. On at least one occasion it appears that 3:1 intervention was required. The situation appears to have been very challenging for the facility and at times very stressful and disturbing for both staff and other residents, some of whom have felt threatened. A list of the recorded difficulties by date is attached to the report of the Public Advocate and is incorporated in these reasons by reference.

24 KR stated that ARC tried to facilitate strategies suggested by the family but the situation did not resolve; that the difficulties continued and in July 2014, JMM was again admitted to hospital following what appeared to be another psychotic episode. The admitting doctor prescribed medication (Oxazepam) to reduce anxiety and agitation.

25 KR stated that on JMM's return to the facility, SW again insisted that the medication be ceased. JMM was seen again by the relevant Older Adult Mental Health Service. At this time she was seen by another psychiatrist, Dr T. His letter to Dr K, of which the Tribunal received a copy (and incorporates into these reasons by reference), recites the ongoing issues and concerns. Dr T recommended that the family consider the use of further medications, Memantine (and possibly the mood stabiliser Sodium Valproate or an antipsychotic drug) instituted by way of a trial, possibly commenced during a hospital stay.

26 KR stated that notwithstanding their apparent consideration of Dr T's proposals, SW and RJM refused to follow the advice given and refused to allow the use of the recommended medications (or any of them) despite JMM's reported levels of agitation, anxiety and upset and the ongoing issues for the facility.

27 KR in her evidence notes that ARC, though able to provide 'high care', is not a 'dementia specific' facility. Her concern is stated to be that unless ARC can find a way of treating JMM's agitation and anxiety and managing her behaviours and reducing the risk she poses to other patients, ARC will no longer be able to provide the level of care that is required by JMM and may have to consider having her transferred to another facility better equipped to manage her and meet her needs.

28 This is said not to be a course of action that ARC wishes to take. ARC's position, as articulated by KR, is said to be that such a course of action would not be in JMM's best interests in view of the fact that her husband resides at ARC and such a move would separate the couple, and further, that JMM has been a committed Seventh Day Adventist all her life and has been an integral part of the ARC community for many years.

29 KR's view is that the remainder of JMM's years should be spent at ARC, which has 'Aging in Place' capacity, but that this can only happen if her behaviours can be managed appropriately with the cooperation and support of her guardians.

30 It is claimed that JMM suffers from a severe dementia and is at serious risk from her behaviour which also places other residents and staff at risk and that the guardians do not recognise the seriousness of the matter, notwithstanding many meetings with them and 'countless' emails to them and the involvement of Advocare, and that the guardians are not making appropriate decisions for JMM. KR stated that the family had been saying for some time that they were seeking a geriatrician's advice but that ARC had no indication that this was in fact being pursued.

31 KR indicated that what had been offered to the guardians was the commencement of the new medication(s) in an inpatient setting under the supervision of medical staff, nursing staff and pharmaceutical staff but that, notwithstanding that 'in the past, in the brief periods of time when [JMM] has had medications, [ARC] have seen some promising results', ARC was still unable to get the guardians to negotiate - that 'it's just a flat "no"'. Because ARC and the doctors felt that there were some pharmacological interventions that they would like to try in order to assist JMM, ARC felt that an application for an alternate guardian was required and made that application on 11 August 2014.

32 JMM was in fact reviewed by Dr RA, a specialist geriatrician/endocrinologist from the Department of Aged Care and Rehabilitation, at the request of the family on 5 September 2014, that is, shortly before the hearing. It appears that ARC was not informed of this renewal. In his reports to Dr K and another general practitioner, Dr L, of which the Tribunal received copies (and incorporates into these reasons by reference), Dr RA summarised the previous mental health and other interventions including the advice and recommendations of Dr T. He commented:

… I do not think I can add much to this management plan. If there are further difficulties I would suggest another referral to the Old Aged Mental Health Service as they are more qualified to intervene in these kinds of situations.

33 It is to be noted that DD reported that in his discussions with Dr RA (on behalf of the Public Advocate), Dr RA indicated that although he saw JMM for review, he has no ongoing oversight of her care and that he did not contact the facility for information as this was contrary to the family's wishes.

The family's position

34 JMM's daughter, SW, agreed at various times during her evidence that she has opposed the use of the various medications referred to. On the one hand, she seemed opposed to the use of this type of medication in principle. On the other hand, she seemed at times to seek to justify her opposition, or at least her delay in cooperating with the use of medication, on a number of bases:

• that there was insufficient communication and involvement of family members;

• that there had been an insufficient effort to properly adjust the dose of the very first recommended medication;

• that Dr K and ARC implemented the specialist recommendations without proper reference to her; and

• that the family were entitled to receive but did not receive promised information about the various medications and their effects and side effects and a sufficient opportunity to consider the materials.

She also complains that she had wanted her mother's care to be coordinated under the oversight of a geriatrician with whom the family would have better communication (rather than a general practitioner).

35 SW disputed the level of problematic behaviours complained of by ARC, insisting that whenever the family visit, JMM is sitting quietly and is not upset or disruptive. She stated to the Public Advocate that the issues raised by ARC are an exaggeration.

36 She went so far as to suggest to the Tribunal in the hearing that this is not in fact just about the proper care of JMM but possibly about management and staffing issues at ARC. She stated that she thinks that ARC should be able to look after her mother properly using appropriate dementia management techniques and not to have to resort to drugs 'to quieten her' and that the effect of the proposed medications would be to prevent JMM 'from being who she really is' and would have the effect of diminishing her very active lifestyle. Her evidence was that she would move JMM from ARC rather than permit the medication treatment that was being recommended.

37 JMM's stepson, RJM, also stated that he would risk JMM's tenure at ARC rather than go along with the recommended treatment. He confirmed that most times when he goes to see JMM she is sitting quietly. He stated to the Tribunal that he has never witnessed the extremes of behaviour. He stated to the Public Advocate:

… I don't deny there are behavioural issues, but I can't believe it's as bad as [ARC] are making out ­ I can't see it. We have some concerns that [Dr K] will just rubber stamp whatever the facility wants ­ we don’t want [JMM] all drugged up to the extent [that] it affects her quality of life.

He also stated:

The [doctors] wanted us to trial her with new drugs, but we are not keen on her [being] used in this manner. Some of these drugs have serious side effects. We have not necessarily made any final decision on medications and we have sought a second opinion from a geriatrician[.] We are respecting [JMM and RMM's] decisions/wish to remain at [the] facility but [that he] struggle[d] with the level of care being provided[.]

He stated that there are some staff members 'that get JMM more agitated than others' and that a major stressor is when staff members will not let JMM go over to see RMM. He agreed it would be 'very distressing' if she had to leave ARC.

38 In relation to the provision of information about medication, both SW and RJM disputed receiving information in a timely way. In relation to consultation, both claimed to have essentially been kept in the dark whilst ARC and the doctors progressed their choices of treatment without discussion. Both claimed that urinary tract infections might explain JMM's behaviour, implying that with proper nursing care at ARC and without the recommended medications, these matters could be managed.

39 JC, JMM's foster daughter, did not attend the hearing but advised the Public Advocate that she visits JMM once a week; that she has not observed the behaviours complained of by ARC; that JMM is usually sitting very quietly colouring in or watching TV when the visits occur. She indicated that she is a nurse and would support a trial of medication and a short stay in hospital if that was required.

40 RMM, JMM's husband, confirmed to the Public Advocate that in the early stages of her time at ARC, JMM 'went beserk' but that she has 'settled down now ­ I think she has improved a bit lately ­ before, she'd get quite upset'.He stated to the Public Advocate that he did not believe that JMM should ever leave ARC ­ 'we've been married 35 years … and she likes to see me[.]'. He reiterated this to the Tribunal. When asked, RMM stated in relation to the trial of new medication:

… well, if he [that is, the doctor] got a drug that's going to help her dementia … that would be good … I would be happy if they got a magic pill … that's going to straighten her out a bit when she's … in her stroppy moods[.]

41 RW, JMM's granddaughter and the daughter of SW, expressed the view that things were not done by ARC in the way that had been promised; that they did not work with the family, did not communicate effectively and that this had caused 'a rift' within the family. She insisted that information was not provided to her mother in a timely way and that she had not had enough time to make the decisions required. She went on to suggest that the 'constant demand for the medication [was just] to make [ARC's life easier]' and that at least some of the doctors were only making their recommendations for medication to make the facility's management task easier.

42 AC from Advocare indicated that she was attending as a support person for JMM and to speak on her behalf; that she had seen JMM on four occasions and that she had been calm on all those occasions. AC emphasised how much of a breach of JMM's human rights it would be to move her from ARC. She confirmed her perception that the central problem is SW's perception about whether she is adequately informed on all matters.

JMM's wishes

43 JMM attended the hearing. She sat relatively calm throughout. She demonstrated obvious affection for RMM and SW but did not participate or express any view on the principal issues in this matter. It is to be noted that her dementia has impacted significantly upon her speech. In his report, DD set out his attempts to explore JMM's family relationships and her wishes with JMM. The Tribunal is unable to draw any conclusions about JMM's wishes with respect to guardianship or the identity of any guardian.

The Public Advocate's position

44 DD recommended the appointment of an independent guardian. He submitted that there had been a breakdown in the relationship between the guardians and ARC; that they were no longer communicating effectively; that there needed to be an independent appointment to break the deadlock and allow the issues to be resolved. He expressed the view that there was no current need for JMM to be the subject of further geriatric review and that an independent guardian should have the same authorities as they are vested in the current guardians. He expressed concern about the time that it was taking for the issues to be addressed and concern that the guardians had sought to have JMM reviewed by a specialist without allowing the specialist access to all information that might assist his deliberations.

Findings

45 The Tribunal is satisfied on the basis of the evidence of KR, corroborated as it is at least in part by the contemporaneous medical information, that JMM has, for much of the time that she has been at ARC, and certainly since the time of her move into the high care wing, suffered from regular periods of anxiety, agitation and distress, at times to a very acute degree; further, that this has caused her at times to behave in an agitated, distressed and at times aggressive and intrusive way. The Tribunal accepts KR as a credible witness and accepts the evidence referred to as having been given honestly and accurately and without any agenda other than a concern for the wellbeing and safety of JMM. The Tribunal rejects completely any suggestion that evidence of JMM's behaviours has been manufactured or exaggerated to suit other purposes of ARC. Both RMM and SW have made comments in their evidence confirming the quality of care generally provided at ARC:

And it doesn't take away that the loving care that she receives from most of the staff in that place is just generous, you know, beyond any expectation. There are some wonderful people there …' (SW) and '… I [sic] got no complaints at all about myself, they look after me very well … and they're very kind people to me' (RMM).

46 It is to be noted that in their evidence, some family members deny having ever witnessed the kinds of agitation, distress and associated behaviours described by ARC. That may be true but that is not to say that these things do not or did not occur and it is to be noted that some concessions in this regard were made by RJM and particularly by RMM. It is of course the case that, although visiting regularly, the family are not present all the time and so cannot witness all the events that occur. It is also understandable that it may in fact be very hard for family members to accept and acknowledge that an illness that is not well understood by them is causing a much loved relative to react to her current circumstances in this way (note RJM's remark - 'I can't believe it's as bad as [ARC] are making out ­ I can't see it').

47 The practices of ARC allow for the contemporaneous making of nursing notes regarding a resident's presentation and behaviour and so, the Tribunal accepts, may be taken as more likely to provide a reliable and accurate history of events. It is to be noted that when it was put to her, SW confirmed that she was not alleging that the nursing notes had been fabricated.

48 The Tribunal finds that what is being (and has been) proposed by the various medical practitioners involved and by ARC constitutes medical treatment for anxiety and agitation and the consequent amelioration of behaviours that stem therefrom, all of which matters are as a result of JMM's dementia condition. It is not a question of chemical restraint and the Tribunal rejects any suggestion that ARC wish to medicate JMM to alleviate management and staffing issues. The Tribunal rejects the suggestion that JMM is going to be 'drugged to stop her having the quality of life that she has at the moment …' (SW), or is being 'prevented from being who she really is' (SW), or 'all drugged up' in the context of ARC's management agenda (as intimated by JMM).

49 The Tribunal accepts that what is sought is an opportunity to trial, in an appropriate and carefully managed way, medication designed to provide relief from the anxiety and agitation from which, to her considerable distress at times, JMM suffers. It appears that on limited occasions in the past when similar medication has been able to be used, albeit on a limited basis or for limited periods, JMM has responded well. The Tribunal accepts KR's evidence regarding this.

50 In terms of the views of JMM's next of kin, it is to be noted that when asked, JMM's husband, RMM stated in relation to the trial of new medication:

… well, if he [that is, the doctor] got a drug that's going to help her dementia … that would be good … I would be happy if they got a magic pill … that's going to straighten her out a bit when she's … in her stroppy moods[.]

51 The Tribunal finds that it is in JMM's best interests that she be provided with the opportunity to find relief from such symptoms through the use of appropriate medication under the guidance of the appropriately qualified mental health professionals.

52 The Tribunal is satisfied and accepts that such relief in this way was pursued for JMM by the doctors and ARC with the guardians from early in her admission and certainly more vigorously from early January 2014. Nine months and four medical opinions later a general practitioner, (two psychiatrists and a geriatrician), JMM is still, in the Tribunal's view and certainly in the view of those charged with her medical care, being inadequately treated for her symptoms and resultant distressed behaviour. This is unacceptable and not in JMM's best interests. These matters affect her wellbeing - physical and emotional ­ her reputation in her much loved residential community, her relationships with people and have required emergency hospitalisation and treatment that may well have been avoided if medical advice had been heeded by the guardians early in the piece.

53 It is not suggested that it is not reasonable for the guardians to ask questions and to seek information about drugs and to source other opinions but these things must be done in a timely way and with an open mind. These matters have taken far too long. Guardians have a positive obligation to deal proactively in the best interests of their charge. The Tribunal does not accept, as a satisfactory explanation for the delay, the claim of the guardians that they have not been provided with sufficient information in a timely way or with sufficient opportunity to ask questions or otherwise inform themselves or that they have been excluded from discussion and decision-making. It is clear to the Tribunal that ARC have been trying for a very long time to negotiate a favourable outcome for JMM with the guardians without success. In this respect the evidence of KR was preferred to the evidence of the guardians. Furthermore, it is noted that in comments made by DD, Dr T had confirmed in conversation with DD on the morning of the hearing that:

… he has given the family information on the Memantine. There was a delay, but apparently it was sent a couple of time[s] to ensure that they got the information. He did say he was happy to answer any questions that they might have, but no one ever got back to him to ask any specific questions.

SW, when pressed, seemed to say that so long as there was a sufficient level of consultation with her, she would not object to the drug therapies recommended. The Tribunal does not accept that she is genuine about this. It is clear that notwithstanding significant efforts to work collaboratively with her, SW has not worked constructively with ARC to resolve the issues regarding the proposed treatments.

54 None of the reasons put up by the guardians for the delay in resolving this matter are satisfactory. In the Tribunal's view, the basis for the approach taken by them can only be understood if one accepts, as the Tribunal does, that they have a fundamental objection to the use of medication and have continued to obfuscate and avoid engagement on the topic as a means of ensuring that medication was not administered. This is, in the Tribunal's view, the only possible explanation in relation to SW. RJM, it is accepted, has been in a somewhat difficult position. As a stepson rather than a blood relative, he has wanted to respect the strongly held wishes of JMM's biological child, SW. He is however an appointed guardian and his obligations to JMM require him to act firstly in JMM's best interest unconstrained by any desire he might have to defer to SW.

55 Furthermore, the guardians, having finally sought their own independent opinion (the geriatrician Dr RA) but now wish to seek a further specialist opinion. SW seeks to justify the further review on the basis of an alleged need for JMM's care to be handled by a geriatrician. There is no evidence indicating that ongoing specialist geriatric oversight is required for JMM. SW does not have a specific reason for this course other than that it is the recommendation of a nurse friend many months ago who 'didn't say why', just that 'this will work best for [JMM]'. The geriatrician, Dr RA, clearly indicated to SW that there was no ongoing role for him and has stated in his report that ongoing overview is currently best left in the hands of the Older Adult Mental Health Services. It is not in JMM's best interests that she be the subject of unnecessary medical review and testing simply to give comfort to SW (who, it is to be noted, stated in evidence that she 'would like to be in more conversation with a doctor who does quite a lot of testing on [JMM]'.)

56 The Tribunal agrees with the comment from DD, the Public Advocate's representative, that it was not in JMM's best interests for the guardians to seek a medical opinion from Dr RA and then to restrict his access to information regarding her circumstances and presentation from ARC whose staff might provide valuable information regarding JMM.

57 The Tribunal also finds that it is in JMM's best interests that she continue to reside at ARC. Her husband resides there and it is clearly not desirable that they be separated by reason of differing care needs unless every appropriate effort has been made to see whether JMM's symptoms can be treated and behaviour ameliorated to allow her to continue to reside in the ARC facility, which, it is acknowledged, although providing high care, is not a dementia specific facility.

58 As was said at the beginning of the hearing, if a person is not suitable for accommodation that is not dementia specific, it is not appropriate to medicate that person solely in order to make them suitable for such accommodation. The Tribunal is satisfied that that is not the situation here. This case involves issues relating to the proper treatment of anxiety and agitation and the provision of relief from those symptoms and the distress that they cause to JMM. Through such treatment, it is hoped to ameliorate the behavioural changes that flow from these symptoms from time to time for JMM and which cause distress to JMM and those around her and expose elements of risk to JMM and others. Those behaviours, if not ameliorated, may lead to a future determination that JMM is not appropriately placed at ARC but that point has not been reached yet. JMM is entitled to the support of all in accessing reasonable recommended medical treatment, including appropriate trials of alternate pharmacological treatments to manage the symptoms and behaviours that flow from her dementia and which may threaten her tenure in the facility of her choice.

59 SW's evidence was that, unless ARC can manage JMM as a patient 'as she is' then 'we may have to find somewhere who [sic] is happy to have her the way she is.' When she was asked whether she would risk JMM's tenure at ARC rather than go along with the recommended course of medical treatment and management that three specialists have endorsed, she answered 'Yes. I will'. In the Tribunal's view, such an approach is not consistent with the advancement of JMM's best interests, particularly in the face of the known long and substantial connection between JMM and ARC and the faith community that it serves, and the effect that such a move would have in separating RMM and JMM.

60 In the circumstances, the Tribunal's view is that the current guardianship is not in JMM's best interests.

61 The Tribunal agrees with the view expressed by DD on behalf of the Public Advocate that the relationship between the guardians and ARC has broken down and it is not serving JMM's best interests. The Tribunal also endorses DD's opinion that if the current order remains, the situation will continue to stagnate. The Tribunal holds out no hope that in the short to medium term the guardians will accept the clear medical advice that is being given to them and act on it. To the contrary, the more likely course is that the guardians, driven particularly by the strong views held by SW, will continue to seek out medical or other opinion that aligns with their own, and will continue to manage JMM's care by reference to their own lifestyle ethic and untrained views about medication, to the detriment of JMM. Though willing to act, in my view, given the matters referred to above, the Tribunal is satisfied that SW and RJM have not acted and will not in the future act in the best interests of JMM in relation to this issue and should be replaced as guardians by an independent guardian. The Tribunal has no doubt that both SW and RJM love and care for JMM very much. They visit regularly and are much involved in her life. There is clearly a genuine affection between all family members. There can be no doubt that they both genuinely believe that they are doing the right thing in their decisions and approach. However, they are misguided in the Tribunal's view, however well motivated.

The decision of the Tribunal

62 The Tribunal therefore appoints the Public Advocate as JMM's limited guardian with the same functions as were held by the previous guardian, that is to say, accommodation, treatment, services and contact.

63 The orders will be reviewed in one year in the hope that by then, these issues will have been resolved and the relationships repaired such that consideration can perhaps be given to the family again having a role as guardian if indeed there is still a need.

Orders

The Tribunal declares that the represented person:

(a) is incapable of looking after her own health and safety;

(b) is unable to make reasonable judgments in respect of matters relating to her person;

(c) is in need of oversight, care or control in the interests of her own health and safety or for the protection of others; and

(d) is in need of a guardian,


and the Tribunal orders that:

1. The order is revoked and a guardianship order in the following terms is substituted for it:


The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth, Western Australia be 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) Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to make treatment decisions for the represented person; and

(d) To determine what contact, if any, the represented person should have with others and the extent of that contact; and

(e) 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 reasons for decision will be published in writing.

4. This order is to be reviewed by 28 October 2015.

I certify that this and the preceding [63] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MS H LESLIE, SENIOR SESSIONAL MEMBER