JW - [2019] WASAT 115

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   JW [2019] WASAT 115
MEMBER:   MS F CHILD, MEMBER
HEARD:   9 MAY 2019
DELIVERED          :   21 NOVEMBER 2019
FILE NO/S:   GAA 834 of 2019
JW
Represented Person

Catchwords:

Guardianship and Administration - Application for the appointment of a guardian - Cognitive impairment - Admission to hospital with malnutrition - Inconsistent decisions about medical treatment - Conflict in family - Conflict about discharge planning - Enduring power of guardianship not effective - Enduring guardian making decision about accommodation without regard to medical and other professional advice - Enduring guardian bound by same obligations to act in best interests as guardian - Public Advocate appointed limited guardian - Enduring power of guardianship suspended during the appointment of the Public Advocate

Legislation:

Guardianship and Administration Act 1990 (WA), s 51, s 110H, Pt 9A

Result:

Public Advocate appointed limited guardian
Enduring power of guardianship suspended

Category: B

Representation:

Counsel:

Represented Person

Ms Binstead

Solicitors:

Represented Person

Ryan & Durey

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These are the reasons of the Tribunal for a decision made on 9 May 2019 to appoint a guardian for JW, on an application made by a hospital social worker (the applicant) following JW's admission to hospital for malnutrition. The applicant sought the appointment of a guardian and an administrator for JW who is an elderly woman and was at the time of the application and hearing an inpatient in the hospital.
JW attended the hearing in person and was legally represented. JW's children C, L and A all attended the hearing as did an investigator from the Office of the Public Advocate.
The applicant and other members of the treating team including the treating consultant, Dr AP and Dr OL, a consultant psychiatrist, the occupational therapist and the clinical nurse case manager all attended the hearing by video from the hospital.
The Tribunal adjourned the application for the appointment of an administrator of JW's estate following submissions by JW's solicitor and by C.
In the course of the hearing the applicant made an application for intervention in an enduring power of guardianship (EPG) made by JW in 2016 by which she had appointed C as her enduring guardian. This was accepted by the Tribunal.
Brief oral reasons for the decision of the Tribunal were delivered at the conclusion of the hearing. The transcript of the reasons for the decision has been edited to remove identifying information, repetition and for clarity.
Those reasons were as follows:
Turning to the guardianship application and the application for intervention in the EPG, the Tribunal must be satisfied that the presumption of capacity is displaced by the evidence.
There are particular findings that have to be made in relation to guardianship applications: to appoint a guardian for someone there has to be the finding that the person is incapable of looking after their own health and safety, incapable of making reasonable judgments about their person, or are in need of oversight and care in the interests of their own health and safety.
I think it is conceded by C, if not by JW herself, that JW is in need of close supervision and care. It is reported by C that she was not sure what JW was eating prior to the hospital admission. She could not be sure because she was not there as she was working. C says she prepared a meal for JW and she thought that JW was eating it. JW was telling her she was eating it, but she perhaps was not given the full information and I think it is accepted by C that 24 hour care, or at least some supervision, is needed for JW.
JW does not agree with that, and I acknowledge her view. Her assessment of her situation is that she is quite independent managing her personal care and managing the household and all of those issues. That is not what the hospital are saying. There is an acknowledgment by the hospital that JW has improved enormously. In the first instance, in the report of Dr NL, there was a reference to JW not regaining her mobility but, in fact, she has done so. This is submitted by C as indicating that the opinions given in that time perhaps should not be given too much weight.
The medical evidence and the psychiatric evidence from Dr OL, who provided the report dated 2 April 2019, and in her oral evidence in the hearing today, indicates that JW has a moderate cognitive impairment.
It is accepted that JW has improved over the course of her admission to hospital (having made very significant improvement in function, and in physical health). However, according to Dr AP and Dr OL, (even when medically stable) when given cognitive assessments and scores with the Addenbrooke score and the MoCA scores JW remains moderately cognitively impaired.
The opinion of Dr OL who, I accept, has the expertise and knowledge to make this assessment, is that JW has what is described as executive dysfunction. The occupational therapist also gave evidence regarding the assessments undertaken on behalf of the medical team and indicates that when JW was observed, she had functional deficits as well. In particular, the areas of deficit were mobility, risk of falls and difficulty with new learning.
The opinion of Dr OL is that JW is not able to make judgments about complex medical treatment. JW has been faced with very complex medical circumstances. JW came into hospital in January 2019 experiencing malnutrition to the point where there were implications for her heart and risk of refeeding syndrome, as was described by Dr AP where JW's health risk was extremely grave.
Dr OL's report refers to JW's health at home likely to have been deteriorating for some time. Dr AP's view about that was that the health professionals could not be certain how long that had been the case. C advises that JW's general practitioner was involved and tried to treat JW but the situation seemed to break down. C says that when she saw JW without clothes on, she became extremely concerned about JW's physical state and then arranged the hospital admission.
The findings I am called on to make in relation to this guardianship proceeding is whether JW is incapable of looking after her own health and safety. I think it is open on the material before me that JW is incapable of looking after her own health and safety and that is because she was suffering malnutrition when she came into hospital.
These conditions that I described earlier, the cardiac implications and the electrolyte imbalance, have all been managed by feeding JW in hospital.
I find that JW is incapable of making reasonable judgments about her person. The evidence and the material before me includes the reports of Dr NL and Dr AP which set out the history of the admission and the treatment of JW.
I refer to the cognitive assessments, but also the evidence from the medical reports and Dr AP's oral evidence and the acknowledgment by C, that JW both consented to medical interventions, such as the intravenous line, and the nasogastric tubes and then pulled those out on multiple occasions, in [name suppressed] Hospital and in [name suppressed] Hospital.
JW is reported to have given inconsistent responses when these issues and the medical procedures were raised with her even within the same conversation with the medical practitioner.
In fact, the evidence is that JW denied recall of conversations, that I accept she had, with the doctors over the period of time. I am satisfied, in respect of Dr OL's evidence that JW's memory is impaired, and that it may be her inability to incorporate the information which causes this inconsistency in her decision-making.
In relation to the question of the need for oversight and care, it is acknowledged by family members that JW needs prompting to eat and to drink.
I find that JW is a person who is in need of oversight and care in the interests of her own health and safety, and that is in the context of her admission to hospital with malnutrition.
In respect of the principles in the Guardianship and Administration Act 1990 (WA) (GA Act) which say that a person is presumed to be able to look after her own health and safety and to make reasonable judgments in relation to her person, I am satisfied that the presumptions are displaced by the evidence.
The principles also require me to have consideration of the wishes of JW. JW has expressed her wishes through the enduring power of attorney and the EPG she executed in 2016. It is very succinctly put to me by counsel for JW what her wishes are; that they have been consistent, and have been clear.
It is said that JW has not deviated from those views, and that is consistent with what Dr OL has said; that JW has maintained her view that she wishes to return to stay with C. Other family members say that JW has taken different views and other hospital staff also say the same. At times JW has taken a view that she would like to live independently, and it is accepted that JW has maintained her view that she does not want to go into residential care. This is a very significant wish and is a very significant consideration because it is the obligation on a guardian to maintain a person to live in the community while that is possible.
In relation to the question of need for a guardian, it is submitted on behalf of JW that there is a less restrictive alternative to the appointment of a guardian for JW, and that is the EPG executed in favour of her daughter C.
This is a less restrictive alternative in the normal course, but it is submitted by the Public Advocate's investigator (the Public Advocate) that there are concerns in relation to this.
The Public Advocate submits that the EPG has not been operating effectively for JW.
C, the enduring guardian, takes the view that she has not operated under the power. She states that, in fact, JW has been making her own decisions largely and that JW has been involved in consent-giving in relation to her medical treatment. C says that even when sick, JW was asked her views.
The view of the hospital is that JW is ready for discharge and there is now an issue as to where she is to go on discharge. JW says that she is determined to return to C, and C is determined to have her there, and that may be the outcome. It is not for me to say. If the guardian is satisfied, that could be the option. However I accept that the EPG has not been effective and I am going to appoint a guardian.
I note the submission made on behalf of JW, that in the assessment of the best interests of a person, that conflict in a person's life cannot justify the making of a guardianship order. The point of that submission is that conflict around one cannot justify the significant decision to remove someone's right to make their own decisions about their person.
Family conflict is unfortunate and very distressing for the person, and JW has made clear her views about that. She would like her children to get on better, but they do not. It is accepted that this is not the reason that a guardianship order should be made. It is one of the elements in the decision to appoint a guardian.
It is argued by the Public Advocate in their submission that C has made the decision about accommodation, and C has confirmed this.
C said she had sworn on the Bible never to place JW in residential care she made that solemn oath to her father on his deathbed. One can understand how seriously she takes that vow; she has undertaken to do that and she feels bound by that obligation, that promise. However, that is not a decision that a guardian can make ‑ to make a decision about accommodation for someone because of a promise to their spouse.
In the submission of the Public Advocate an enduring guardian falls under the same obligations as an appointed guardian to make decisions in the best interests of the person concerned and that is to maintain the person living in the community. However, a guardian or the enduring guardian cannot have already made the decision without considering the aged care assessment or without consideration of the other health professionals' views, and to have already formed the view that JW could never go into a nursing home.
It is understood JW does not want to go into a nursing home and it seems reasonable that she take that view from her history and her background. She is not alone there. However, it is put by the Public Advocate that on occasions people do require residential aged care and it is not appropriate for the decision to be made having regard to matters that are not relevant to the health and safety of the proposed represented person, and the need to prevent that person experiencing neglect.
The obligations on a guardian to act in the best interests of JW are set out in s 51 of the GA Act and apply to enduring guardian by s 110H of the GA Act.
It is appropriate that decisions be made for JW that properly take account of the medical and the other health professionals' opinions, and which properly provide for the protection of JW's health and safety. Unfortunately, these decisions may not always accord with her wishes.
C has said that she also feels bound by the expressed wishes of JW in relation to services (for example, the cancellation of Silver Chain) and she feels bound by her very solemn vow to her late-father.
In the face of this lengthy hospital admission and the input of the people at [suppressed] Hospital about JW's care needs, it is not appropriate this evidence be dismissed by a guardian without proper consideration.
It is essential that there be someone who is able to weigh up of all of the medical evidence in coming to decisions for JW.
It is said that JW has recovered, has regained her mobility, and may be able to live in the community as she wishes to do, with a level of services. But that has got to be a judgment made with all of the information before the guardian. It cannot be the case that that judgment is made for considerations that do not relate to the proper care needs of JW.
I am satisfied that the EPG is not appropriate for that reason.
There is also the consideration that there is family conflict in the background. It is evident that this has been a longstanding conflict between JW's children and it is unfortunate. However, it impacts on JW because the hospital has had to create a schedule for visiting, as the children have not been able to deal with people in an appropriate way.
I consider that the conflict itself and the way that it impacts on JW means that there is a need for an independent person to deal with all of the children of JW. This will allow appropriate information to be provided to them and for information from them to be obtained in formulating any decision for JW.
I accept the submission of the Public Advocate that an enduring guardian is bound by the same obligations of a guardian including the obligation to maintain the supportive relationships of the represented person.
Where the children are at such loggerheads and do not seem to have any mechanisms for effective communication between them, that would cause some difficulty in maintaining those supportive relationships.
The EPG is clearly the choice of JW and there is no evidence led about her being incapable at the time of execution. But the EPG does not seem, in the view of the Tribunal, to be working for JW at the moment. The enduring guardian says she is not acting even though there have been issues where there has been a requirement that she does act.
In the Public Advocate's report there is an admitted failure by C to pass on information that one would have thought would be quite reasonable to pass on to her siblings: that their mother had been admitted to hospital. I think it is unreasonable for any person to prevent that information being passed on to JW's children.
The other issues raised are about C's conduct in the hospital and it is acknowledged by C that incidents reported at the hospital did occur. However, C has a different perspective on them.
She acknowledges that the comments attributed to her were made. She does not acknowledge that she used excessive force. She does agree she took JW by the collar and moved her along the bed at that time. These reported incidents are concerning. C has an explanation for them and says that is how she was trained to do these lifts. I prefer the evidence of the clinical nurse case manager in relation to the amount of force used and what is described as 'hostility' or 'verbal aggression' because it is consistent with the material in those reports. It may be the case, as is stated, that C was overwhelmed by the particular event and that is not unreasonable. But it does cause concern that C would act in this way in such a public place. She was in a hospital room and there were nurses around. She was, as she describes, using a 'booming voice'. Notwithstanding JW has a hearing impairment, I do find that that incident was hostile and verbally aggressive to JW as described by the clinical nurse/case manager.
I consider that for all of those reasons (and in particular, the need for a decision-maker who will promptly take on board the medical evidence) that the EPG has not operated effectively for JW.
I accept counsel for JW's assertion of the need for an aged care assessment. Someone needs to consent to that assessment so that the position can move forward. I consider there is a need for a guardian to deal with that question and, also, to deal with the issues raised in relation to accommodation.
It needs to be borne in mind that under s 51 of the GA Act that any guardian appointed has, as their first obligation, the maintenance of the person living in the general community , that is, not in a nursing home.
That is the first obligation on any guardian. But that decision must be made consistent with the other obligations to act to prevent the person from suffering neglect, including self-neglect, and to ensure that that person's health and safety needs can be met. If JW has the resources to fund 24/7 care in her home, that, no doubt, would be explored.
I consider that JW, for those reasons I have given, is a person for whom these orders may be made.
I formally find that JW is incapable of looking after her own health and safety, is unable to make reasonable judgments in matters relating to her person, and is in need of oversight and care in the interests of her own health and safety.
I find she is in need of a guardian because I find the EPG is not operating effectively to meet the decision-making needs of JW.
I consider that, in the present circumstances of JW the extreme level of conflict between the children of JW necessitated the abandonment of an assessment by the occupational therapist, and the monitoring of the visiting by JW's children by a schedule in a public hospital. This extreme level of conflict disentitles any family member from being appointed as guardian at the present time. The conflict between them is too great, and the communication is so ineffective as to make them not suitable for appointment as guardians of JW.
I appoint the Public Advocate as the limited guardian to decide where and with whom the represented person is to live, to make treatment decisions on her behalf, to determine the contact she has with others and the services to which she should have access, including assessments to be conducted by health professionals of JW's capacity independently, without other people being involved in that assessment.
I consider it appropriate that if the health professionals consider that an assessment should be conducted of a patient, with that patient able to speak freely and to be assessed completely, that this can happen without any other person, including JW's children, being present.

The function to consent to services also includes services to support JW to remain living at home, such as domiciliary services or other services to which she should be entitled. But it would require the aged care assessment to indicate whether JW would be safe at home and that those services could be provided to her. They might need to be purchased or might be provided through the normal systems.
I am satisfied that those orders are appropriate.
I approve delegation of the Public Advocate of her functions as guardian to an officer or employee employed in the Office of the Public Advocate.
These orders will be made for a very short time. I am going to bring this matter back for review when hearing the administration application. The order is for three months. The guardianship order will therefore be for review by 9 August 2019.
In respect of the oral application by the applicant regarding the EPG made by JW by which she appointed C as enduring guardian, I am satisfied that it is an EPG executed under the Pt 9A of the GA Act. I am satisfied that I should intervene in it for the reasons given and I intervene as follows: That the EPG executed on 24 October 2016 is suspended during the appointment of the Public Advocate as guardian.

Orders

1.The Tribunal declares that the represented person, JW is:
(a)incapable of looking after her own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person;
(e)in need of oversight, care or control in the interests of her own health and safety; and
(f)in need of a guardian.

The Tribunal orders:
Guardianship
2.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)To decide where the represented person is to live, whether permanently or temporarily;
(b)To decide with whom the represented person is to live;
(c)To make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(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.

3.Pursuant to s 110N of the Guardianship and Administration Act 1990, the enduring power of guardianship dated 24 October 2016 made by JW by which C is appointed enduring guardian, is suspended during the appointment of the Public Advocate as guardian of the represented person.
4.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.
5.The guardianship order is to be reviewed by 9 August 2019.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS F CHILD, MEMBER

21 NOVEMBER 2019