KB
[2016] WASAT 100
•16 AUGUST 2016
KB [2016] WASAT 100
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 100 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1303/2016 | 21 MARCH AND 20 APRIL 2016 | |
| Coram: | MS F CHILD (MEMBER) | 16/08/16 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Public Advocate confirmed as guardian | ||
| B | |||
| PDF Version |
| Parties: | KB |
Catchwords: | Guardianship and administration Review of guardianship order Represented person with significant physical disabilities and mild intellectual disability with impaired decisionmaking Background of conflict Previous orders not effective to meet needs Reappointment of Public Advocate consistent with the wishes of represented person Plenary appointment Uncertainty as to the scope of authority to be exercised by the guardian |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 43, s 44(5), s 49(1)(a) |
Case References: | KB [2013] WASAT 108 |
Summary | On review of a short term guardianship order made in favour of the Public Advocate, the order was confirmed. The Tribunal found that the represented person remained a person for whom a guardian could be appointed and that she needed a guardian due to her high level of physical dependence and vulnerability and the potential volatility of her living circumstances.,The represented person had recently reconciled with her spouse from whom she had separated on 11 previous occasions and against whom she had made previous disclosures of domestic violence. The spouse had a history of a head injury and demonstrated difficulty regulating his behaviour. The represented person was physically dependent on others for her care needs but the extent of her dependence was not recognised by the spouse.,The represented person's mother and sister who had in the past acted as guardians were unable to continue to play the role due to conflict with the represented person and her spouse.,The Tribunal confirmed the Public Advocate as guardian consistent with the wishes of the represented person.,A plenary appointment was made as the Tribunal was not satisfied that a limited order would meet the needs of the represented person due to the possible changing needs of the represented person. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : KB [2016] WASAT 100 MEMBER : MS F CHILD (MEMBER) HEARD : 21 MARCH AND 20 APRIL 2016 DELIVERED : 16 AUGUST 2016 FILE NO/S : GAA 1303 of 2016 BETWEEN : KB
- Represented Person
Catchwords:
Guardianship and administration - Review of guardianship order - Represented person with significant physical disabilities and mild intellectual disability with impaired decisionmaking - Background of conflict - Previous orders not effective to meet needs - Reappointment of Public Advocate consistent with the wishes of represented person - Plenary appointment - Uncertainty as to the scope of authority to be exercised by the guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 43, s 44(5), s 49(1)(a)
Result:
Public Advocate confirmed as guardian
Summary of Tribunal's decision:
On review of a short term guardianship order made in favour of the Public Advocate, the order was confirmed. The Tribunal found that the represented person remained a person for whom a guardian could be appointed and that she needed a guardian due to her high level of physical dependence and vulnerability and the potential volatility of her living circumstances.
The represented person had recently reconciled with her spouse from whom she had separated on 11 previous occasions and against whom she had made previous disclosures of domestic violence. The spouse had a history of a head injury and demonstrated difficulty regulating his behaviour. The represented person was physically dependent on others for her care needs but the extent of her dependence was not recognised by the spouse.
The represented person's mother and sister who had in the past acted as guardians were unable to continue to play the role due to conflict with the represented person and her spouse.
The Tribunal confirmed the Public Advocate as guardian consistent with the wishes of the represented person.
A plenary appointment was made as the Tribunal was not satisfied that a limited order would meet the needs of the represented person due to the possible changing needs of the represented person.
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
KB [2013] WASAT 108
Background
1 In 1994, an application was made to the then Guardianship and Administration Board (Board) by the mother of the represented person, WW, seeking the appointment of a guardian and administrator for the represented person because she believed KB (the represented person) to be in a controlling and abusive relationship with PB. The represented person was legally represented and opposed the orders.
2 The Board dismissed the applications as it was not satisfied the presumption of capacity had been displaced on the evidence before it. The Board published reasons for its decision on 23 June 1994. (Unreported File No 940165). I was a member of the three member panel of the Board which determined the applications. The Tribunal has exercised the jurisdiction of the former Board since 2004
3 Further applications were filed with the Tribunal by the Director for Local Area Coordination of Disability Services Commission (DSC) in 2012 for both the represented person and PB who had married in 1994.
4 The applications filed in respect of PB were dismissed as the Tribunal concluded that, although he was a person for whom orders could be made because of impaired decisionmaking due to an acquired brain injury, there was no need at the time for the orders to be made for him.
5 The represented person was legally represented in the 2012 proceeding and, through her representative, submitted that the represented person consented to orders for the appointment of a guardian and administrator and expressed her wish that her mother and sister be appointed in these roles. In the course of the final hearing she announced her separation from PB.
6 The application was brought by DSC because of a reported breakdown in the delivery of personal care services on which the represented person was completely reliant for all her care needs due to her physical disabilities. The applicant reported that the represented person required assistance with activities of daily living such getting out of bed, showering, toileting, meal preparation and leaving the house, but services had either been cancelled by PB or withdrawn by service providers because of allegations of inappropriate conduct by PB to carers. There were allegations of neglect and abuse of the represented person by PB which he denied.
7 The Tribunal was satisfied, having regard to all of the available evidence, that the represented person did have a mild intellectual disability and was a person for whom orders could be made and that she needed orders.
8 Reasons for the decisions were published as KB [2013] WASAT 108.
9 The Public Advocate was appointed guardian of the represented person jointly with WW and the represented person's sister, as the Tribunal considered it was in the best interests of the represented person that there be an independent guardian, together with her mother and sister who were the choice of the represented person, because of the length of the period estrangement between the represented person and her family of origin.
10 The Tribunal found on the evidence of PB that the represented person had been estranged from her family as a result of the conduct of PB. Further, that the exclusion of the mother and sister of the represented person from her life was an aspect of the domestic violence to which the represented person had been subject by PB.
11 The length of the period of estrangement between the represented person and her family and the possibility that there may be a reconciliation with PB by the represented person, supported the need for the appointment of an independent guardian.
12 Following an investigation by an investigator from the Office of the Public Advocate and an application for the appointment of an administrator of her estate, the Public Trustee was appointed limited administrator of the represented person's estate. An enduring power of attorney which appointed PB as the represented person's attorney was revoked. PB, who has an acquired brain injury, could not give a coherent account of the destination of significant funds which had been received into the represented person's estate.
13 On review of the orders in 2014, TJC, the sister of the represented person, sought to relinquish her role as guardian in order to maintain her supportive role with the represented person.
14 Both WW and the Public Advocate's delegated guardian reported that the joint appointment had not been effective to meet the needs of the represented person. It was clear that a working relationship had not developed between them. Each submitted that they should be appointed as sole guardian of the represented person.
15 At the 2014 review hearing, the represented person asked that her mother be appointed as her guardian but expressed her wish to see and have contact with PB.
16 The question of who should be appointed was referred for mediation between the guardians to explore whether a joint appointment was appropriate or possible.
17 Following the mediation, it was reported by the guardians that there was an agreement about the orders proposed which was for the appointment of the Public Advocate as limited guardian to determine contact the represented person should have with others. It was proposed that WW be appointed limited guardian to decide where and with whom the represented person should live, to make treatment decisions on her behalf and to determine the services to which she should have access.
18 The orders as proposed were made at the conclusion of the hearing on 14 January 2015, as the Tribunal found that WW was suitable for appointment as guardian for the proposed functions and her appointment was consistent with the expressed wish of the represented person.
19 The Tribunal determined that WW was not suitable for appointment to determine contact as her stated position was inconsistent with the expressed wish of the represented person that she has some contact with PB. The Public Advocate's guardian indicated that the contact issues should be explored and supervised contact might be necessary.
20 On 9 March 2016, an application was filed by WW for a warrant pursuant to s 49(1)(a) of the Guardianship and Administration Act 1990 (WA) (GA Act) to enter premises where the represented person was living. This followed the transport of the represented person from her home to that of PB, facilitated by PB and a carer of PB, LW. WW did not attend the hearing of that application. The application for a warrant was dismissed.
21 An application filed by the Public Advocate on 11 March 2016 sought review of the existing guardianship orders. It asserted that the guardianship orders were not operating in the best interests of the represented person and that the represented person no longer wanted her mother to act as her guardian. The hearing of the application was listed urgently on dismissal of the warrant application.
22 At the review hearing on 21 March 2016, the Tribunal heard that the represented person had left the accommodation and services organised by WW as guardian without any notice to WW, the Public Advocate or the service providers and had been transported to the home of PB.
23 Although the hearing of 21 March 2016 had not provided a full opportunity for WW to put her position, partly due to technical difficulties with the telephone and due to her acknowledged hearing impairment, the Tribunal determined that there was an immediate need for revocation of the existing orders. WW was unable and unwilling to access the property where the represented person was living due to opposition from PB. The Tribunal concluded, given the history of reported previous neglect and abuse of the represented person by PB, that there was an immediate need for a guardian to directly assess the represented person's circumstances to determine whether her health and safety were at risk.
24 The Tribunal revoked the existing orders and appointed the Public Advocate as plenary guardian of the represented person.
25 In summary, the Tribunal was satisfied that the represented person remained a person for whom a guardian could be made and, in the circumstances, she needed a guardian. Those circumstances included:
• the manner in which the represented person had been transported from the accommodation arranged and determined by her lawful guardian;
• the lack of insight of both the represented person and PB into her decisionmaking disability and her physical care needs and her dependence on others for care including the need for safe transfers; and
• the refusal of PB to allow WW to ascertain the welfare of the represented person due to aggression directed to her by PB and the consequent inability of WW to engage with PB to negotiate the represented person's access to services essential for her day to day care.
26 WW's appointment was revoked and the Public Advocate was appointed as plenary guardian as the Tribunal found that WW was unable to perform her functions as guardian. A plenary appointment was made as the Tribunal was unsure of the scope of the authority required by the guardian in the changed circumstances of the represented person.
27 The order now under review is the order which appoints the Public Advocate as plenary guardian of the represented person made on 21 March 2016.
Principles to be observed
28 In determining the review of the order, the Tribunal must observe the principles set out in s 4 of the GA Act which provide that the primary concern must be the best interests of the represented person.
29 There is a presumption that the represented person is capable of making reasonable judgments about her person.
30 A guardianship order may not be made where there is a less restrictive alternative to meet the needs of the represented person. Where an order is made it must be in the terms that impose the least restrictions on the person's freedom of decision and action.
31 A plenary order should not be made unless the Tribunal is satisfied that a limited order will not meet the needs of the represented person.
32 The Tribunal must ascertain as far as possible the views and wishes of the represented person.
33 Before appointing a guardian or confirming the appointment of a guardian on review the Tribunal must first be satisfied that the represented person is a person for whom a guardianship order may be made.
34 Pursuant to s 43 of the GA Act, the Tribunal must be satisfied that the represented person is
(i) incapable of looking after her own health and safety;
(ii) unable to make reasonable judgments in matters relating to her person, or
(iii) is in need of oversight, care or control in the interests of own health and safety or for the protection of others.
35 Secondly, the Tribunal must be satisfied that the represented person is in need of a guardian.
36 Pursuant to s 44(5) of the GA Act, the Tribunal may not appoint the Public Advocate as guardian unless satisfied there is no other person who is suitable and willing to be appointed.
Evidence and material before the Tribunal
37 In determining the review, the Tribunal has considered material before it for the hearings on 21 March 2016 and 20 April 2016. The Tribunal had the benefit of oral evidence at those hearings from the represented person, her spouse PB, her mother WW, her brotherinlaw GC, the delegate of the Public Advocate, the carer of PB, LW and a representative of the service provider for the represented person.
38 The Tribunal also received detailed written submissions from the represented person, PB, WW, TJC, and GC, from the former service provider and an email from the delegated guardian of the Public Advocate providing a report of an interview with the represented person since the Public Advocate was appointed plenary guardian. The Tribunal has also had regard to the health professionals' reports and material filed for the original application in 2012 and previous reviews of the order including a neuropsychologist's report of 7 July 2014.
Background to the review
39 Accounts of the history of this matter since the orders were made and the roles played by the guardians, service providers and others, are outlined in the submissions filed for the review.
40 Turning to the submissions filed by WW, TJC and GC, and that of the service provider, there is such divergence of understanding between the parties about the history of this matter, the roles and responsibility each played and the sources of conflict, that it is not possible to arrive at a conclusion as to the correctness of any view.
41 It seems that WW was in conflict with the service provider about the accommodation and services, including what she judged as the uncertain tenure of the represented person in the accommodation and identified building defects of the property which she says were ultimately the responsibility of the owner of the property to address with the builder. The responsibility for this, WW asserts, was not taken up by the service provider with the owner appropriately to the detriment of the represented person.
42 On the other hand, the service provider asserts that WW 'was solely responsible for the delay' in attending to repairs and maintenance on the property because WW 'had not purchase[d] equipment needed for maintenance to be carried out' (submission by SB and JS, Individualised Services Coordinator, filed 17 March 2016).
43 There were also disputes about the configuration of the hours of service and nature of services to be provided to the represented person. Both WW and TJC assert that the represented person could not have been supported over the period but for the commitment they showed to her, in particular, in the provision of accommodation in TJC's home for a period. They say further support was provided when the represented person moved into accommodation provided by the service provider, with continued ongoing involvement of both WW and TJC in hours of care and transport and other supports. It is said the represented person's level of care could not have been maintained without their involvement and that her personal care and health have improved considerably since the appointment of WW as guardian. They, and GC, say that there was no recognition of this or of their commitment and support for the represented person despite its impact on their own lives. They also say that their work toward a different model of care for the represented person, which they say would better meet the represented person's needs, was fundamentally undermined by the service provider to the longterm detriment of the represented person.
44 Conversely, the service provider is highly critical of WW's role, including her refusal to sign the tenancy agreement unless repairs were completed, and the way in which care was delivered to the represented person. The submission states WW had an inflexible approach to the provision of service hours. It is asserted in the submission that WW was trying to meet her own needs, as opposed to the represented person's needs and that activities outside the home for the represented person were restricted and the represented person was socially isolated as a result. Efforts to modify the care arrangements were reported to be resisted by WW.
45 There is also conflict in the evidence about access and use of the service provider's vehicle by the represented person. WW and TJC's submissions are critical of the inability to access the vehicle for the use of the represented person to access the community. The service providers say that offers made for use of the vehicle were not taken up on behalf of the represented person.
46 It is obvious from the material filed that the relationship between WW and the service provider was conflictual. The tone of correspondence sent to staff of the service provider by WW, copied to the Tribunal by her, is confronting, demanding and at times personally critical of individuals. The relationship between WW and service provider appears to have deteriorated quite quickly.
47 In the submission filed by the service provider, the material is equally confronting, describing decisions of WW as 'implement[ing] restrictive practices' and 'violating the human rights' of the represented person, and it is suggested that her decisions about service provision be 'viewed as neglect' and alleging 'emotional neglect' of the represented person. This followed an allegation that WW removed mobile telephones from the represented person.
48 In the hearing on 21 March 2016, the delegated guardian reported that no decision had been made by the Public Advocate about contact between the represented person and PB. The delegated guardian described attempts made to contact the represented person through TJC without success since the order was made in January 2015 to address the issue of contact.
49 The relationship between the WW, TJC and the delegated guardian was also problematic. For example, the delegated guardian acknowledged she did not contact WW over a period of months when TJC had not responded to efforts by the delegated guardian to contact the represented person through her in relation to contact with PB.
50 There was also an apparent lack of cooperation between the guardians or at least confusion about their roles. In response to a request from the delegated guardian to meet with the represented person to discuss the contact order, TJC states in her submission that: 'As [the represented person's ] advocate and not involved in the guardianship I was under no obligation to report every contact she had with [PB] to [the guardian]'. This is despite the Public Advocate's delegated guardian having the authority to determine contact. TJC states that she suspected that the represented person had had contact with PB during this period.
51 The lack of communication and an effective working relationship between WW and the delegated guardian, as guardians of the represented person (exercising different functions), may have contributed to the breakdown in her situation. It is apparent that all the relationships deteriorated over the time of the order, including that of the represented person with her mother and sister, between WW and the service provider, and between WW and TJC and the delegated guardian.
52 The represented person apparently became frustrated with what she perceived to be inaction about contact with PB and expressed this in the hearing when she said: 'Excuse me, but I couldn't see my husband. That's what went wrong (T:21; 20.04.16).
53 As noted, the Public Advocate had the function to determine the contact the represented person has with others and the extent of that contact by order made in January 2015. No other person was authorised to make this determination. It follows then, that if the mobile phone was removed from the represented person's possession by WW, as alleged, in an effort to prevent contact with PB (and without the authority of the Public Advocate), then this action was acting outside WW's authority as guardian. The appropriate course would have been to bring the matter to the Tribunal for review of the guardianship orders if they were not operating in the best interests of the represented person. Although it is said that the service provider had brought the issue to the delegated guardian and was on the verge of making an application for review of the orders, this did not occur. The Public Advocate sought review after WW initiated the warrant application to the Tribunal.
54 The warrant application arose because the represented person had been transported from her home to the home of PB.
55 At the hearing on 21 March 2016, PB said that the represented person had been transported to his home by 'a friend' of the represented person. He said 'I didn't know they knew one another' (T:30; 21.03.16). This evidence was false.
56 In the hearing on 20 April 2016, LW, the carer of PB, who is paid by a service provider to provide services to PB, explained her role in the transport of the represented person to PB's home.
57 LW acknowledged that she was aware of the guardianship order made for the represented person. LW described PB as 'her boss' and that she was a 'friend' of the represented person. In her evidence, LW said that she had spoken to the represented person on the telephone when the represented person had contacted PB over a period of about six months, but had not met her until the day when she provided transport to move the represented person to PB's home.
58 LW did not, prior to or since the move, contact the guardians, WW or the Public Advocate or the former service provider, about the care needs of the represented person. From LW's own evidence, it can be inferred that LW was reliant on PB's view of the care needs of the represented person and she had not made any assessment of those needs herself (assuming she was qualified to make such an assessment) prior to intervening to facilitate the move of the represented person to PB's home.
59 Despite professional assessments to the contrary of which he is aware, PB has always maintained that he can transfer the represented person safely. In a previous hearing, he said he could transfer the represented person 'with one hand' (T:35; 08.03.13) and, in his submissions, states that she can walk unaided, that she does not have a cognitive impairment and that his own needs have been neglected by carers in the past because preference was given to the represented person's needs. It is noted that a hoist used to transfer the represented person was not taken with the represented person when she was moved to PB's home.
60 An earlier lengthy submission was refiled for this review by PB which referred to '[PB's] inadequate 1.5 hours per day absorbed by [the represented person's] care needs and his individuality ignored'. The transfer of the represented person to the home of PB, without the necessary aids used by her, indicates a continuing lack of appreciation of her care needs.
61 In the application brought by DSC in 2012, the Tribunal was told there had been a number of service providers involved in delivery of services to the represented person and PB, which had either been cancelled by PB or withdrawn by the providers because of aggressive or disinhibited behaviour by PB to carers. It is unclear whether LW had been made aware of this reported history by her employer.
62 Despite LW's assertion that she has appropriate qualifications, there would seem to be an urgent need for training by her employer organisation in the areas of domestic violence awareness, guardianship and administration and professional obligations and boundaries.
63 At the time of the present review of the guardianship order, the represented person is again living with PB. The delegated guardian of the Public Advocate visited the represented person shortly after the appointment, at the request of the represented person made at the hearing. PB agreed that the delegated guardian could speak to the represented person in the carport.
64 The report of the delegated guardian outlined the difficulties with arrangements for the transfer of a hoist used by the represented person. The guardian also reported that opposition by PB to the service provider caused the represented person to lose longterm carers with whom she had a good relationship because PB believed that the service provider had instigated their separation. One incident of PB pulling the represented person's hair had been observed and reported to the delegated guardian.
Is the represented person a person for whom a guardian may be appointed?
65 The historical medical records of the represented person provided for previous hearings were canvassed in the decision of 2013. From all the material considered, the Tribunal concluded then, and adopts now, the finding that the represented person suffered an hypoxic brain injury at birth and has, as a result, a mild intellectual disability and significant physical disabilities.
66 The Tribunal again confirms that there is no evidence of any kind in those extensive records which supports the assertion by PB that WW, the mother of the represented person, injured her. The Tribunal concludes that this allegation is false and the continual repetition of it by PB is an effort to damage the reputation of WW with both the represented person and others, including service providers.
67 The represented person was registered with DSC and received services from the then Cerebral Palsy Association including special education.
68 The diagnosis of intellectual disability is refuted by both the represented person and PB. The Tribunal prefers the evidence of Dr M, a neuropsychologist, who assessed the represented person in 2014 and found that:
[The represented person's] higher level thinking skills, collectively known as the executive functions, were broadly consistent with her overall level of ability ('Extremely Low').
…
Of particular relevance was her limited capacity for reasoning and her limited insight into the impact of her physical and cognitive difficulties on her function. On formal assessment she demonstrated 'Extremely Low' capacity for verbal abstract reasoning, and her responses to a range of daily-life problems were rational but shallow and concrete, and were not always practicable. … [The represented person] demonstrated very poor insight into the impact of her physical disability on her function, and tended to overestimate her cognitive ability. Collectively, these features of her cognitive profile severely impacted her capacity to reason with regards to her own situation.
…
[T]here was sufficient evidence throughout the two interviews to indicate that she has only partial insight into her level of cognitive ability and limited capacity for reasoning.
…
[The represented person] is a now 45-year-old woman with cerebral palsy, visual impairment and physical disability. She is fully dependent for all her care needs and mobilises in a wheelchair. … Current assessment revealed a highly vulnerable woman who overestimates her capacity. Her intellectual abilities are in the range consistent with mild intellectual disability (assessment was limited to verbally mediated tasks in the context of her visual and physical limitations), with significantly reduced verbal comprehension, impaired capacity to learn and retain information, reduced insight and impoverished reasoning ability.
…
[The represented person's] reduced capacity to comprehend information presented to her, poor ability to learn and later accurately recall information, inability to read written information (therefore unable to consult notes to prompt her memory when weighing up treatment options), and poor reasoning ability compromise her capacity for informed decisionmaking. Superficially, [the represented person] presents as more cognitive[ly] able than formal assessment revealed. This is likely to be due to her relatively welldeveloped vocabulary and expressive language ability, together with her engaging personality and selfassurance regarding decision making and wishes. For this reason, medical professionals may overestimate [the represented person's] decision making capacity.
69 The Tribunal finds that based on all the medical and professional reports before the Tribunal, and in particular the neuropsychologist's assessment and the represented person's own presentation, that the presumption that the represented person is able to look after her own health and safety and make reasonable judgments about her person, is displaced. Due to her physical dependence on others for all aspects of activities of daily living, the Tribunal finds that the represented person is unable to look after her own health and safety. The Tribunal accepts, in particular, that the represented person has impaired decisionmaking and lacks insight into her care needs and finds she is unable to make reasonable judgments about her person and she is in need of oversight and care in the interests of her own health and safety.
70 She is therefore a person for whom a guardianship order may be made.
Is the represented person is need of a guardianship order
71 The guardianship orders were first made for the represented person in 2013. During the final hearing of the application made by DSC, the represented person announced her decision to separate from PB. She had said of her situation 'it's not safe' (T:24; 08.03.13). When asked about this statement in the review hearing on 20 April 2016, the represented person said 'it wasn't safe at that time. He wasn't on medication ... [h]e is on medication now' (T:31; 20.04.16).
72 Earlier she said that PB 'doesn't shout, doesn't scream, doesn't I can actually calm him down' (T:24; 20.04.16). She said that in the past PB 'used to tell me what to do, when to do it, how to do it'. She said this had now changed and that PB had said 'you decide what you want' (T:29; 20.04.16). She said PB was her main worry and she needed to support him.
73 The represented person stated that she wanted contact with her family but said she was 'not happy' with her mother because her mother was against PB. She said that she believed that this was so because 'she thinks that he has not changed'. She agreed that her mother's views were based on her mother's belief that PB had hurt her in the past. The represented person said she wanted to be with her husband. She said 'if he was violent to me now, I would leave because he is not violent now. He is he is changed now. If he was violent, I would leave (T:24; 20.04.16:34). The represented person said she would call the police or her family if she wished to leave PB.
74 She acknowledged that PB did not agree with her having contact with her sister TJC prior to the previous separation, but that she still did it because 'I needed that time with her' (T:35; 20.04.16).
75 In relation to the previous cancellations of services, as alleged in the original application by DSC, she said that services were now being provided and that PB is 'very polite'.
76 The represented person acknowledged that she had separated from PB 11 times during their marriage but said she now wanted to stay in the marriage as she was getting the help she needed. She said both she and PB were in counselling.
77 PB said that he had not kept the represented person away from her family and the lack of contact had been the represented person's choice. He denied being a 'wife basher' or assaulting the represented person, despite a disclosure made by her about bruising. He said disclosures made by her in the past had been 'led on by people trying to get the right what they want, the answers out of her' (T:39; 20.04.16).
78 PB acknowledged 11 separations from the represented person but said 'and this is the same thing (indistinct) every time, and also orchestrated by her mother and the rest of her family' (T:40; 20.04.16).
79 In respect of the need for a guardian, the Tribunal finds that the represented person is in need of a guardian in her present circumstances, she has returned to a relationship where there is a history of domestic violence but denial of this by PB. The recent report of the guardian refers to a report that PB pulled the represented person's hair.
80 Although the represented person says that PB is now on medication and he has changed, he has a history of a head injury, has reportedly aggressive behaviour prior to his injury, and he presents as someone who experiences difficulty in regulating his behaviour. In this context, there is need for close supervision of the living circumstances of the represented person, independent of PB. The represented person is a highly vulnerable and a physically dependent person but PB does not acknowledge her level of dependence or the extent of her care needs. There is a need for close supervision of her health care needs and the services provided to her.
81 The Tribunal has found in the past that PB controlled the contact the represented person had with others. His recent refusal, for his own reasons, of service providers well known to the represented person, indicates he has not changed in relation to this type of behaviour. The present attitude of PB to the mother and sister of the represented person means that there is a need for advocacy and management of this issue to enable the represented person to have contact with persons of her choice without interference. The represented person is reported not to want to see her mother, although she did not repeat this in the hearing. On the other side, it is reported, though denied, that WW removed mobile phones from the represented person in an effort to restrict contact with PB which caused distress and a sense of loss of control by the represented person. The issue of contact needs to be actively managed by an independent guardian.
Wishes of the represented person
82 In addition to the wish to remain living with PB, the represented person expressed the wish that the delegated guardian of the Public Advocate (J) be appointed as her guardian (T:32; 20.04.16).
83 In the report of the delegated guardian dated 13 April 2016, the reliability or durability of the expressed wishes of the represented person is explored. It is reported that the represented person has said she 'says what gets her through at the time' and has 'made up things' when speaking to her mother about her husband without appreciating the consequences of some of her statements. The opposite may also be true; that is, the represented person has 'made up things' about her mother when speaking to PB, which may explain some of the bizarre allegations he repeats in the material filed with the Tribunal and apparently copies to numerous other authorities and persons. (The circulation of this material is in breach of the represented person's privacy and likely a breach of the GA Act, since the material has been filed with the Tribunal as part of the proceedings and clearly identifies the represented person and her family members.)
84 In the submission of the guardian, the represented person is reported to have said 'it was not all her husband's fault as she too did mean things'. This presumably is a reference to the domestic violence and is a somewhat childlike response to the issues raised in the original application of incidences of domestic violence and neglect documented by services providers for the original application and most recently reported in the recent email by the guardian.
85 The reported unreliability of the represented person's statements must be taken into account when dealing with her needs. The neuropsychologist referred to in these reasons raised the concern that the represented person's decisionmaking capacity may be overestimated by healthcare professionals. This, together with the potential unreliability of her statements and reported lack of understanding of consequences, reinforces the vulnerability of the represented person and the need to have as a priority the protection of her health and safety.
Appointment of the guardian
86 In the original decision of the Tribunal to appoint the Public Advocate, together with the mother of the represented person, there was consideration that there might be a reconciliation with PB. The possibility that this might occur, given the history, reinforced the need for an independent guardian. The recent reconciliation of the represented person with PB confirms that need.
87 The mother and sister of the represented person did not propose their appointment on review. The appointment of the Public Advocate as the guardian of the represented person is consistent with her wishes expressed in the hearing.
Plenary or limited powers
88 The Tribunal considers that the guardian should have plenary powers. The represented person is highly dependent on others for her care needs and is extremely vulnerable as a result. The potential volatility of her living circumstances means that the Tribunal is not certain of the scope of functions which the guardian may be called on to exercise in the interests of the represented person.
89 The order will be reviewed in November 2019 to bring it into line with the existing administration order which appoints the Public Trustee as limited administrator of the estate of the represented person.
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:
The order is confirmed as follows:
1. The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth, Western Australia be appointed plenary guardian of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
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. This order is to be reviewed by 21 November 2019.
- I certify that this and the preceding [89] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER