LM and MM - [2010] WASAT 110

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: LM and MM [2010] WASAT 110

MEMBER: MS F CHILD (MEMBER)

HEARD: 19 OCTOBER 2009 AND 22 OCTOBER 2009

DELIVERED : 30 JULY 2010

FILE NO/S: GAA 2393 of 2009

BETWEEN: LM
Applicant
AND
MM
Represented Person

Catchwords:

Guardianship and administration Review of guardianship order Represented person with advanced dementia resident in a nursing home Daughter appointed as guardian banned from nursing home Guardian's relationship with service providers completely broken down Need for an independent guardian to decide where the represented person should live, to consent to medical treatment and to determine the contact she has with others

Legislation:

Guardianship and Administration Act 1990 (WA), Pt 5, Div 3, s 4, s 43(1)(b), s 43(1)(c), s 44(5), s 17A, s 86, s 87

Result:

Public Advocate appointed limited guardian

Category: B

Representation:

Counsel:

Applicant: Self-represented
Represented Person : N/A

Solicitors:

Applicant: N/A
Represented Person : N/A

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

LM and MM [2008] WASAT 106
LM and MM [2009] WASAT 209

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

On review of a guardianship order for a woman with advanced dementia, the Tribunal revoked her daughter's appointment as her guardian and appointed the Public Advocate as the guardian. The daughter had been banned from the nursing home where her mother lived. Following the failure of mediation between the parties, the Tribunal found on the evidence that the working relationship between the daughter and the nursing home which provided her mother's care had completely broken down. In these circumstances, the daughter could not perform her function as guardian to consent to medical treatment on her mother's behalf.
The daughter wanted to move her mother from the nursing home, despite her acknowledgement that a move would be detrimental to her mother as she was settled and well cared for at that facility. Her brother did not agree with the proposed move.
The Tribunal determined that there was a need for an independent guardian to be appointed to make decisions about where the woman was to live, medical treatment decisions and the contact she should have with others.
The proposal that the son be appointed as the guardian was not accepted as the Tribunal found that an independent guardian was needed to negotiate access of the daughter to their mother. Further, the son's appointment as guardian might result in more conflict with his sister with whom he had only recently been reconciled after a period of estrangement.

Background

These reasons relate to a decision of the Tribunal to review a guardianship order which appointed LM, the daughter of MM (represented person) as her limited guardian. On review, the order was revoked and the Public Advocate appointed limited guardian. These written reasons are produced at the request of LM.
The review of the order followed an urgent application by the Director of Nursing of 'K' nursing home in which the represented person lives. Prior to the hearing of the review of the order, LM, her daughter, had been banned from attending the nursing home to visit her mother.
Some of the background of the represented person's circumstances is set out in reasons of the Tribunal published as LM and MM [2009] WASAT 209 at [22] and LM and MM [2008] WASAT 106. In the decision of 28 March 2008, the Tribunal notes:
MM is an elderly woman with advanced dementia. She has resided for some time at H Nursing Home. LM, her daughter, has been her main support and advocate during this time. LM is one of five children of MM and is in conflictual relationships with three of her four siblings. LM did not believe that MM was receiving optimal care at H Nursing Home and consequently complained to the Department of Health and Ageing, the department responsible for licensing nursing homes. The Department of Health and Ageing investigated the complaints and found that H Nursing Home was not in breach of their responsibilities and were providing adequate care for MM.
LM's relationship with the nursing home deteriorated to the point that several staff applied for restraining orders against her. These applications were later withdrawn. After several unsuccessful attempts on the part of the nursing home to put in place strategies to control LM's allegedly difficult behaviour, the nursing home banned her from visiting.
LM made application to the Tribunal for a guardianship order proposing herself as guardian. Three of LM's four siblings were opposed to her appointment.
The Tribunal found that it was in MM's best interests to have a guardian independent of the family and appointed the Public Advocate limited guardian to make decisions about accommodation, contact with others and medical treatment and health care. The appointment was made for one year.
In September 2008, LM sought review of the guardianship order under s 86 and s 87 of the Guardianship and Administration Act 1990 (WA) (GA Act). She proposed that she be appointed MM's guardian. The Tribunal confirmed the order of 28 March 2008. LM then sought review under s 17A of the GA Act. Following a hearing on 29 May 2009, the Full Tribunal appointed LM as limited guardian.
The Tribunal came to that decision based on its findings that MM had been in 'K' nursing home since April 2008 without significant issues arising between LM and the nursing home staff.
Further, although LM was a strong advocate for her mother and placed demands on staff, there was no evidence that the matters raised had not been substantially resolved at K nursing home.
The Tribunal accepted that there was some risk of deterioration in the relationship between LM and the nursing home staff. However, there was insufficient evidence of this risk materialising to warrant the appointment of the Public Advocate as guardian, either alone or jointly with LM. The nursing home was aware that an application could be brought to the Tribunal for a further review if a breakdown in the relationship occurred, and it was considered that LM's appointment as guardian was not in MM's best interests.

The current review

On 4 September 2009, the Director of Nursing, (applicant) at 'K' nursing home where the represented person lives, lodged an application for leave to seek review of the order made by the Full Tribunal appointing LM as the limited guardian of the represented person.
On 9 September 2009, a member of the Tribunal gave leave for the order to be reviewed under s 86 of the GA Act.
The matter came on for urgent hearing before the Tribunal on 19 October 2009 because of what was said to have been a complete breakdown in the relationship between the daughter, who is the appointed guardian, and staff of the nursing home.
The hearing of the application for review was part heard on 19 October 2009 and adjourned for mediation between the parties on 21 October 2009 before another member of the Tribunal. As the matter was not resolved at mediation, it was adjourned for a further hearing on 22 October 2009.
The evidence and material before the Tribunal includes the written reasons for decisions of the Tribunal published in March 2008 and November 2008 regarding the represented person, transcripts of those hearings, a report from Dr F, who is the represented person's current treating doctor, submissions made by LM, a letter from the sons of the represented person, submissions from nursing home staff, the organisation managing the nursing home, the applicant and a speech pathologist. Evidence was given in the hearings by LM, her brother, several staff at the nursing home and submissions made by the representative of the Public Advocate.
In the course of the hearings, allegations were made on both sides; the applicant and other staff from the nursing home complaining of the conduct of LM at the nursing home and LM complaining that staff had not met the care needs of the represented person.
The nursing home staff allege that what they regard as intimidatory, intrusive and challenging behaviours of LM towards staff in relation to the care of the represented person have escalated since she was appointed guardian.
LM made complaints to the Nurses Board of Western Australia about nursing staff at the facility. She said that her mother had conjunctivitis which had not been properly managed by the nursing staff. When asked about this during the hearing, LM conceded that although she had complained about redness in her mother's eye over a period of time to nursing staff, she herself had not contacted her mother's doctor to seek his advice.
Although LM submits that the guardianship order, which appoints her as guardian for her mother, is working well and she is advocating for the health care concerns of the represented person, it is apparent from the correspondence and all the evidence of both the applicant, other nursing home staff, and LM, that the relationship between the nursing home and LM has broken down. In fact, LM has been banned from attending the nursing home from 12 October 2009 by the executive director of the organisation operating the nursing home. LM has been advised by letter that if she attends the nursing home the police will be called to remove her.
Up until that date, it was agreed that LM had attended the nursing home each day and had been involved in the care of the represented person, including her personal care and feeding.
The banning of LM is said to have followed an incident in which MM alleges that her foot was caught in an office door when it was closed by one of the staff members. This is denied by two staff members.
In the May 2009 hearing before the Tribunal, LM expressed her satisfaction with the care of the represented person in the nursing home. At the review hearing, LM says that it is crucial that she have access to the nursing home to allow her to visit her mother, primarily for the purposes of feeding her. It is argued that feeding took considerable time because the represented person was sometimes resistant to eating. LM alleges that the represented person has lost weight, but this is denied by the applicant, who says that her weight has been consistent.
LM acknowledges that she was banned on 5 February 2008 from attending 'H' nursing home where her mother lived prior to this facility. She says that following the appointment of the Public Advocate as the guardian for the represented person, her mother was moved to her present accommodation ('K' nursing home). LM says that misconduct restraining orders, which had been brought against her by the nursing home staff at 'H' nursing home, had been later withdrawn. Supervised access to her mother had been arranged at that facility. She suggests something similar might occur at K nursing home.
LM says her consent has not been sought in relation to antibiotic treatment of the represented person or changes in her diet, such as the introduction of psyllium husks.
She concedes that in the present arrangement she is unable to visit her mother and that this is probably why an independent guardian is preferred by the nursing home staff. LM submits that she should remain as the guardian for the represented person as she has been a strong advocate for her mother. She does not want an independent guardian appointed as she submits this was unsuccessful in the past.
LM states that although the represented person is well cared for and settled in the current nursing home, it is not in her best interests to remain there because her mother does not have her support. Although it would be an upheaval to move the represented person to another facility, LM says it is necessary because 'the element of trust had been severed' between her and the nursing home.
The son of the represented person, who attended the final hearing, says he visits his mother once or twice a week but has not seen anything wrong with the nursing home. He is satisfied, overall, with the care his mother receives. He is concerned at his sister's exclusion from the nursing home as he believes that this is not good for his mother or for his sister. He did not know about the incidents which had allegedly led to her exclusion and wants his sister brought back in to visit their mother. He is particularly concerned about access for the represented person to LM at Christmas. He is also concerned about the represented person's life expectancy and believes that, in the circumstances, it is inappropriate for her daughter to be excluded from contact with her.
Following the failure of mediation, the Public Advocate submits that the relationship between LM and the nursing home is not able to be sustained. LM is not able to carry out her duties as guardian in these circumstances and it is submitted that the only way forward is for the Tribunal to reappoint the Public Advocate as a guardian of last resort.
The representative of the Public Advocate submits that there is a need for a guardian to be appointed to make decisions about the represented person's accommodation, medical treatment and the contact she should have with others.
The son says that if his sister's appointment as guardian is revoked, that he proposes himself for appointment. He says he would have the support of his brother and sister if appointed. He expresses his willingness to work with both the facility and with his sister and wants to arrive at an agreement to resolve the problems between them. Prior to the hearing, he had not been aware of the conflict between the nursing home and his sister, as neither of them had spoken to him. He describes himself as being the 'piggy in the middle' when he became aware of the problems, and that he 'couldn't do much about it'. He considers that this position might be different if he were the appointed guardian because he would be able to lay down rules and would be able to bar his sister from seeing his mother.
The applicant did not support the son's appointment and was in favour of the appointment of the Public Advocate. She considers that the son might be manipulated by LM.
LM states that there has been a dispute between her and other family members, including her brother, over an enduring power of attorney executed by the represented person. LM says she was appointed plenary administrator of the mother's affairs in 2004 and the family have only recently resolved their differences over that issue.
The Public Advocate submits that the conflict is so entrenched between LM and the nursing home that the appointment of an independent guardian may assist to preserve some of the relationships within the family.

Legislative framework

A guardianship order may be made or confirmed on review if the Tribunal is satisfied that the person meets the criteria set out in s 43(1)(b) and s 43(1)(c) of the GA Act, that the person:
(b)is
(i)incapable of looking after her own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to her person; or
(iii)in need of oversight, care or control in the interests of her own health and safety or for the protection of others;
and
(c)is in need of a guardian,
…
This provision is subject to s 4 of the GA Act which provides that in all proceedings brought under the Act, the Tribunal must observe the principles set out in s 4 which state that the primary concern of the Tribunal is the best interests of the represented person; that persons are presumed to be capable of managing their affairs and making decisions about their persons unless there is evidence to the contrary; that guardianship orders should not be made if the represented person's needs can be met in less restrictive ways than the making of an order. There is an obligation on the Tribunal to attempt to ascertain the wishes of the represented person.
The Public Advocate cannot be appointed guardian unless there is no one else suitable or willing to be appointed (s 44(5) of the GA Act).

Findings of the Tribunal

Capacity

The evidence is that the represented person has advanced dementia. She is dependent on others for all of her most basic needs. She is a person for whom all of the paragraphs in s 43(1)(b) of the GA Act apply, in that she is incapable of looking after her own health and safety, 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.

Wishes of the represented person

In relation to the question of her wishes, the Tribunal accepts the evidence that for most part the represented person is nonverbal, and that even if she does speak from time to time, she would not be able to indicate in a capable way what her wishes are in relation to the review of the guardianship order. Nonetheless, I accept that were she able to express her views, she would likely want her daughter or her son to be her guardians.

Need

Given the history and what seems to be an intractable conflict between the nursing home staff and LM, I find the represented person is in need of a guardian.
LM said at the first hearing that the guardianship order which appoints her is working well and she had good relationships with some staff. This contrasts markedly from all other evidence, including LM's own evidence about incidents which are said to have occurred at the nursing home and the evidence of the nursing home staff themselves. Her brother who visits twice weekly is not aware of the conflict. Despite this, I prefer the evidence of the staff of the nursing home in relation to the existence of conflict between LM and staff at the nursing home and the breakdown of that relationship.
Mediation of the conflict was attempted in the course of the proceeding before the Tribunal. This was appropriate as there had not been any formal mediation or apparently any grievance procedure entered into by the nursing home staff or by management with LM in relation to the allegations made about her conduct prior to her being banned from the nursing home. Unfortunately, mediation by an experienced mediator of the Tribunal was unable to resolve the matter, which indicates how entrenched the positions are. The need for a guardian arises from the conflict surrounding the represented person. I accept the submissions of both the applicant and the Public Advocate that the guardianship order cannot work effectively for the represented person when the guardian is banned from attending the nursing home in which the represented person lives.

Who should be appointed guardian

I find that the current guardian, LM, is not suitable for appointment as guardian because of the breakdown in the working relationship between her and the direct carers of the represented person, being the staff at the nursing home.
In respect of the son's proposal for his appointment as guardian, although I accept he is a devoted son and a concerned brother, in light of the current circumstances of conflict he is not suitable for appointment as guardian either.
He describes himself as being the 'piggy in the middle'. He is concerned about the impact on both LM and the represented person following LM's inability to attend the nursing home. Although he is committed to the resolution of the conflict, he has insufficient knowledge of it and lacks an ability to stand outside the situation as an independent guardian would do to try to resolve the conflict.
The appointment of the son as guardian would inevitably lead to conflict between him and LM about decisions for the represented person since they do not agree on some issues and LM has very strong views about her mother's care. This would put him in an untenable position were he to attempt to preserve the relationship he has with his sister. Their relationship has, according to LM, only recently been restored after a period of conflict. The appointment of the Public Advocate as an independent guardian is needed in order to ensure the best interests of the represented person are advanced.

Functions of the guardian

The current ban on access of LM to the nursing home needs to be resolved quickly so that it does not impact on the represented person. For access to resume, negotiation with the staff of the nursing home is required. The Public Advocate is best placed to do this. Access may be granted to LM to attend the nursing home on conditions, as she said had been arranged with the previous nursing home. With the authority to determine the contact the represented person has with others, and the extent of that contact, the guardian is empowered to speak with the authority of the represented person in representations made to the nursing home. It should be noted that this does not give the guardian the power to grant access to LM to the facility.
In addition to the problem of her lack of access to the nursing home, LM has expressed strong views about a range of issues relating to her mother's care. She raises concerns about her mother's weight, her diet and feeding, and prescribed medications. Although it is agreed the represented person is dependent on others for all aspects of her care, the lack of agreement about the various strategies employed in her care mean there is a need for a guardian to determine health care decisions for the represented person.
In respect of the decision as to where the represented person should live; it is agreed by all the parties that the represented person is settled in the present facility where she has lived since April 2008. LM proposes that she be moved, despite acknowledging that such a move will be detrimental to the represented person. The proposal is not supported by the son or nursing home staff. Because of the conflict about this, a decision about the represented person's accommodation should be made by an independent guardian.

Length of order

The conflict between LM with this nursing home and with the previous nursing home, has existed for some time but there remains a possibility that if the current conflict can be resolved that a family member might be appointed guardian of the represented person, and so the order should not be made for the longest period possible. A three year order is appropriate.

Order

1.The order is revoked and a guardianship order in the following terms is substituted for it:
The Public Advocate 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 Div 3 of Pt 5 of the Guardianship and Administration Act 1990, to consent to any treatment or health care of the represented person; and
(d)To determine what contact, if any, the represented person should have with others and the extent of that contact.

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 22 October 2012.

I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER