LM and MM
[2009] WASAT 209
•29 MAY 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: LM and MM [2009] WASAT 209
MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)
MR J MANSVELD (MEMBER)
MS S GILLETT (SENIOR SESSIONAL MEMBER)
DELIVERED : 29 MAY 2009
EDITED REASONS DELIVERED ORALLY
ON 29 MAY 2009
FILE NO/S: GAA 912 of 2009
BETWEEN: LM
Applicant
AND
MM
Represented Person
Catchwords:
Guardianship and Administration - Review of guardianship order - Section 17A - Review by a Full Tribunal - Daughter appointed as guardian in lieu of Public Advocate - Guardian given limited powers - Tension between daughter and nursing home staff - Decision turns on its own facts
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 17A, s 43(1)(a), s 43(1)(b), s 43(1)(c), s 44, s 44(2), s 44(5), s 86, s 87
State Administrative Tribunal Act 1990 (WA), Pt 3 Div 3
Result:
Application granted and LM appointed limited guardian for her mother MM
Category: B
Representation:
Counsel:
Applicant: Self-represented
Represented Person : Self-represented
Solicitors:
Applicant: Self-represented
Represented Person : Self-represented
Case(s) referred to in decision(s):
LM and MM [2008] WASAT 106
LM and MM [2009] WASAT 81
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
In March 2008, the Tribunal appointed the Public Advocate limited guardian for a 90 year old woman suffering from advanced dementia.
The appointment arose out of a breakdown in the relationship between the nursing home staff where the woman resided and the woman's daughter. She visited her mother on a daily basis.
Subsequent to the woman being moved to another nursing home, the daughter sought a review of the guardianship order and proposed that she be appointed her mother's guardian.
On 11 November 2008, a single member of the Tribunal confirmed the appointment of the Public Advocate as the woman's limited guardian.
The daughter sought review of the decision pursuant to s 17A of the Guardianship and Administration Act 1990 (WA).
By the time of the review hearing, the woman had spent 13 months in the nursing home and although issues had arisen between the daughter and the nursing home staff about the woman's care needs, these had been substantially resolved.
The nursing home and the Public Advocate supported the continuation of the guardianship as there remained a risk that the relationship between the daughter and the nursing home staff would again break down.
The Tribunal accepted that a risk remained, but that there was insufficient evidence before it about the current risk to warrant the ongoing appointment of the Public Advocate as the woman's guardian.
In accordance with the Guardianship and Administration Act 1990 (WA), the Tribunal appointed the daughter as the woman's limited guardian for two years to make decisions related to her ongoing treatment and health care.
Background
LM applied for review of a limited guardianship order in respect of MM under s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act). Section 17A of the GA Act entitles a party who is aggrieved by a determination by the Tribunal constituted by a single member to require a review of that determination by a Full Tribunal. Under s 3 of the GA Act, a Full Tribunal is the Tribunal constituted by the President or a Deputy President and two other members.
In this case, the Tribunal was constituted by Deputy President Judge Eckert and Members Mr J Mansfield and Ms S Gillett.
MM is a 90 year old woman who resides in a nursing home. She is diagnosed with dementia that has reached an advanced stage.
The application is made by LM, a daughter of MM. MM has four other children.
LM seeks review of a decision by the Tribunal constituted by a single member made on 11 November 2008 appointing the Public Advocate as MM's limited guardian with the following functions:
1)To decide where MM is to live whether permanently or temporarily and to decide with whom she is to live;
2)To consent to any treatment or health care of MM; and
3)To determine what contact, if any, MM should have with others and the extent of that contact.
Those orders were made as a result of a review application by LM made on 21 September 2008. The Tribunal received written submissions from LM, DM, the eldest child of MM, and from the Public Advocate as limited guardian for MM.
LM attended the hearing as did the delegated guardian and IC, Director of Nursing at the aged care facility at which MM resides.
Review jurisdiction
The Tribunal as constituted under s 17A of the GA Act exercises its review jurisdiction pursuant to Pt 3 Div 3 of the State Administrative Tribunal Act 1994 (WA) (SAT Act).
This means that we look at LM's application made on 21 September 2008 and the Tribunal proceedings on 11 November 2008 when that application was heard as though we are the original decisionmaker considering that original application. We have therefore considered all of the material before the single member together with additional material filed with the Tribunal and referred to below. We approached our consideration of the matter 'afresh' without any need to find fault with the decision made by the single member, and we must make the 'correct and preferable decision'. In essence, we began again and looked at the application heard on 11 November 2008 together with LM's application under s 17A of the GA Act.
The hearing of this application
On 29 May 2009, we heard the application under s 17A of the GA Act and after careful consideration of the evidence, the GA Act and MM's best interests, we made orders revoking the limited guardianship of the Public Advocate and appointing LM as limited guardian for her mother, with the function of giving consent to MM's treatment and health care. That order is to be reviewed in two years.
Subsequently, LM asked for written reasons for our decision and we now provide those written reasons.
The issues
The issues before us for decision in these proceedings are:
1)Does MM have capacity to make her own decisions?
2)If she does not have capacity to make decisions about herself, does she need a guardian to be appointed to make those decisions?
3)If MM needs a guardian, who is suitable to be appointed in accordance with the GA Act? A number of sub issues arise in this regard, such as the stability of the relationship between LM and the nursing home staff.
4)Is it in MM's best interests for LM to be appointed her limited guardian?
History of order made for MM
On 28 February 2005, LM was appointed the plenary administrator of the estate of MM. This order is to be reviewed by 28 February 2010.
In March 2008, the Tribunal appointed the Public Advocate as the limited guardian of MM, see LM and MM [2008] WASAT 106. In particular at [1] to [4], the Tribunal says 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 alleged 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 a review of the guardianship order under s 86 and s 87 of the GA Act. She proposed that she be appointed MM's guardian. On 11 November 2008, the Tribunal dismissed her application and confirmed the order of 28 March 2008; see LM and MM [2009] WASAT 81, particularly [1] to [3] where the Tribunal states:
In March 2008, the Tribunal appointed the Public Advocate limited guardian to make decisions in relation to accommodation, medical treatment and contact with others for MM, an elderly woman with advanced dementia. At the time this order was made, LM, daughter of MM, was in conflict with the nursing home where MM resided and, as a result, had been banned from visiting MM in the nursing home. Subsequent to her appointment in March 2008, the Public Advocate, in consultation with LM, moved MM to a new nursing home where LM was able to resume visiting her.
On 21 September 2008, LM applied to the Tribunal for a review of the guardianship order and proposed that she be appointed guardian in place of the Public Advocate. In making a decision in relation to this application, the Tribunal had evidence before it that the relationship between LM and the current nursing home was somewhat tenuous, with staff feeling under pressure from LM who, at times, had unrealistic expectations of nursing home staff and their care of MM. Both the nursing home and the Public Advocate recommended that the Public Advocate continue in the role of guardian until it was clear whether the relationship between LM and the nursing home was an ongoing workable one.
The Tribunal confirmed the appointment of the Public Advocate as limited guardian with the authority to make decisions about accommodation, medical treatment and contact. The Tribunal made a short order of 12 months, giving the parties time to ascertain whether the appointment of LM or a family member would be workable and in MM's best interests. [Added emphasis].
The submission of LM (applicant and daughter)
LM states that she is 'totally happy' with the care being provided to MM and wishes for her mother to spend the remainder of her life in the nursing home. She has approached nursing staff about a number of issues and found them to be very understanding. The issues have included a concern about the colour of MM's urine; a leaking and overfull catheter bag and requests for more food for her mother.
LM states that she feeds her mother nightly and at lunchtime on each day of every weekend. She is happy with the quality of the food.
LM says that she e-mails her siblings with information about MM's wellbeing.
LM gave us a written reference from a former Director of Nursing of the nursing home in which MM previously resided. The referee states that she was at the nursing home when MM was admitted in July 2006 and had contact with MM until she (the Director of Nursing) left the nursing home in January 2007. The Director of Nursing found LM to be courteous and polite to staff, residents and visitors. She would visit her mother every day and these visits were positively received. She was able to persuade her mother to take in an adequate diet. The Director of Nursing states that LM brought concerns or questions to her in a prompt and friendly manner, discussions would be open and honest and suitable solutions found.
The submission of IC, Director of Nursing at the nursing home in which MM resides
IC states that the situation is 'fairly stable' as regards the care of MM and LM's interaction with nursing home staff. There is currently an issue with the amount of food MM consumes; LM demands two full bowls of food which she feeds to her mother over several hours. This, according to IC, has led to MM having 'her bowels move more often than they probably should', so she is arranging for a dietician to assess MM's dietary needs.
IC states that LM visits her mother every evening and that there exists a 'fairly reasonable relationship' with the regular staff. IC says that she has requested that LM not feed her mother with the door to the room closed but understands this is still occurring.
IC submits that the reason for the stability is the presence of the Public Advocate as the appointed guardian and she would be concerned if the order were not in place. She states that LM is a 'brilliant daughter and all the positives that go with that', but the time needed to be spent to address her concerns and enquiries is significant and impacts on the time available for other residents.
The submission of DM (daughter who lives overseas)
DM supports the appointment of LM as guardian for their mother. She states that her support is based on the fact that prior to MM being placed in residential care, LM cared for her at home. She states that LM visits MM on a daily basis, arranges and attends medical appointments and advocates for MM's welfare. DM submits that LM's commitment to MM is exemplary.
DM submits that the other two children of MM, who live in Western Australia, have not in the past provided her with an adequate duty of care.
The submission of the Public Advocate (limited guardian of MM)
The Public Advocate states that since April 2008, MM has been very successfully accommodated at the current nursing home and from the time of the order of 11 November 2008, she has consented to two minor medical procedures for MM.
The Public Advocate submits that because of MM's advanced dementia, she remains a person who could have a guardian appointed.
The Public Advocate states that at the Tribunal hearing on 11 November 2008, both she and IC reported the presence of some tensions between LM and the nursing home staff, and that there is no reason to believe that these tensions have completely settled.
In her report for the hearing on 11 November 2008, the Public Advocate states that she had on many occasions sought the views of MM's general practitioner and the health professionals at the nursing home in response to numerous concerns raised by LM. On those occasions, the Public Advocate had been satisfied with the standard of care and medical treatment provided to MM. At the time, the Public Advocate had not needed to use her authority to regulate the contact LM was having with MM.
In her current report, the Public Advocate describes a situation that arose when LM made a formal written complaint about what she saw as inadequate portions of food provided for MM. IC is reported to have acknowledged that there had been a mix up with MM's meal portion, but expressed a concern to the guardian that LM had not initially approached the problem in a less formal way. LM is also reported to have said to the guardian in May 2009 that the nursing home staff do not speak with her.
In light of the observed ongoing tensions, the Public Advocate submits that it is in MM's best interests that the guardianship order remains in place with the Public Advocate remaining as MM's limited guardian.
The relevant legislation
The GA Act requires that we must first be satisfied that MM has attained the age of 18 years and is either incapable of looking after her own health and safety, unable to make reasonable judgments in respect of matters relating to her person or is in need of oversight care or control in the interests of her own health and safety or for the protection of others (s 43(1)(a) and s 43(1)(b) of the GA Act).
If that is established, we then must determine whether MM is in need of a guardian (s 43(1)(c)).
We must, in our deliberations observe the principles set out in s 4(2) of the GA Act. These state relevantly that our primary concern is the best interests of the represented person, MM; that every person is presumed capable until the contrary is proved to our satisfaction; that a guardianship order shall not be made if the needs of the person can be met by other means less restrictive of the person's freedom of decision and action; that as far as is possible, the views and wishes of the person shall be considered; that a plenary guardian shall not be appointed if the appointment of a limited guardian will be sufficient to meet the needs of the person and that any order made shall be in terms that impose the least restrictions on the person's freedom of decision and action.
If we are satisfied that MM is in need of a guardian, then we must decide who should be appointed. In this regard, we are guided by the provisions of s 44 of the GA Act. The proposed guardian must be at least 18 years of age, must consent to act and must be a person who, in the opinion of the Tribunal, will act in the best interests of the represented person. A proposed guardian also must not be in a position where their interests conflict or may conflict with the represented person's interests. Finally, the proposed guardian must otherwise be suitable to act as the represented person's guardian.
To decide the suitability of the proposed guardian, we must take into account, as far as is possible, the desirability of preserving existing relationships within the represented person's family; the compatibility of the proposed guardian with the represented person and the administrator (if any) of her estate; the wishes of the represented person and whether the proposed guardian will be able to perform their functions (s 44(2) of the GA Act).
We must not appoint the Public Advocate as guardian unless there is no other person who is suitable and willing to act (s 44(5)).
The capacity of MM
It is common ground that MM is in the advanced stage of a dementing illness and is unable to make any decision in her life.
The Tribunal is satisfied that MM meets all of the factors contained in s 43(1)(a) and (b) of the GA Act, in particular that she is unable to look after her own health and safety; that she is unable to make reasonable judgments in respect of matters relating to her person and that she is in need of oversight, care and control in the interests of her own health and safety. The issue of lack of capacity is therefore met.
The need for a guardian and who should be appointed
There is no dispute that MM is in need of a guardian. The questions for the Tribunal are what should be the scope of the order and who should be appointed the guardian.
The Public Advocate supports the continuation of the current order appointing her to make decisions about MM's accommodation, medical treatment and health care, and the contact MM has with others. She does so on the basis of what she observes as the unresolved tensions between LM and the nursing home staff.
IC, the Director of Nursing, also supports the continuation of the order submitting that it is the order which acts to maintain the stability of the relationships between LM and the nursing home staff.
LM proposes herself as guardian for MM on the basis of her role as the long term carer and advocate for her mother and as her daughter.
The views of the Public Advocate and IC are shaped, no doubt, on what is said to have occurred during the time MM spent in her former nursing home and from what they observe in LM's conduct when visiting or advocating for her mother.
We are mindful of the extreme breakdown in the relationship between LM and the former nursing home staff culminating in LM being prevented from entering the nursing home's premises. It is, however, necessary for us to make a judgment based on MM's current circumstances and situation and whether it is more likely than not that the situation of the previous nursing home is replicated in her current accommodation.
We accept that if that situation should arise, it would not be in MM's best interests for LM to be her guardian
Relevant facts
The relevant facts before us are:
•MM has lived in her current nursing home since April 2008 without, it appears, significant issues arising between LM and the nursing home staff.
•We accept that LM is a strong advocate for her mother and that she will place demands on staff to deal with matters of concern to her which puts pressure on staff time and reflects on their ability to care for other residents.
•There is no evidence that despite this difficulty, the matters raised have not been substantially resolved.
•The Public Advocate, as guardian for MM, has not provided any evidence that she has had to intervene in the relationship LM has with the nursing home staff to the extent of using her authority to regulate the contact LM has with her mother. IC thinks it is the mere fact of the appointment that provides adequate regulation.
Findings
The GA Act provides that we shall not appoint the Public Advocate as guardian for a person (except under a joint appointment) unless there is no other person who is suitable and willing to act.
We are satisfied on the evidence that LM is suitable to act as the guardian for her mother and that she will act in her mother's best interests. We find that this is the correct and preferable decision within the requirements and tenor of the GA Act. We accept that there is some risk of deterioration in the relationship between LM and the nursing home staff, however, there is insufficient current evidence of that risk to warrant the appointment of the Public Advocate either alone or jointly with LM. The nursing home is aware that if there is a breakdown in that relationship so that LM being MM's guardian is not in MM's best interests, then it can bring an application to this Tribunal for further review based on then current evidence.
MM is not able to give an account of her wishes in respect of the application made by LM, however, we are satisfied, given the history of LM's care and advocacy for her mother, that she would want LM to be her guardian.
We are satisfied that the only function that need be given to LM as guardian is to consent to MM's ongoing treatment and health care. This particular function will provide certainty in the decisionmaking around the health and care needs of MM.
There is no current need for an accommodation function given that LM has said she is happy with the care the nursing home is providing her mother and has no intention of moving her to another facility.
Orders
The Tribunal's orders of 11 November 2008 are revoked and a guardianship order in the following terms be substituted:
1.[LM] be appointed limited guardian of [MM] with the function to make decisions related to the treatment and health care of [MM]; and
2.This order is to be reviewed by 29 May 2011.
I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J ECKERT, DEPUTY PRESIDENT