LM and MM - [2009] WASAT 81

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: LM and MM [2009] WASAT 81

MEMBER: MS D DEAN (MEMBER)

HEARD: 11 NOVEMBER 2008

DELIVERED : 30 APRIL 2009

FILE NO/S: GAA 912 of 2009

BETWEEN: LM
Applicant
AND
MM
Represented Person

Catchwords:

Guardianship Public Advocate limited guardian with the authority to make decisions in respect of accommodation, contact and medical treatment Leave granted to daughter to apply for review of guardianship order Whether the daughter is suitable to act as guardian Public Advocate reappointed as limited guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 43, s 86, s 87, s 87(5)(b), s 90
State Administrative Tribunal Act 2004 (WA), s 78

Result:

Public Advocate re-appointed as limited guardian for one year

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

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

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.

Background

The represented person (MM) is an elderly woman with advanced dementia. On 28 March 2008, the Tribunal appointed the Public Advocate limited guardian for MM with the authority to make medical treatment decisions, to decide where and with whom she should live and to determine what contact she should have with others: see LM and MM [2008] WASAT 106.
This decision was made in the context of conflict between MM's daughter (LM) and some of her siblings, and between LM and the nursing home where MM was residing at the time. As a result of the conflict between LM and the nursing home, LM was banned by the nursing home from visiting MM.
Subsequent to her appointment in March 2008, the Public Advocate agreed to MM moving to a new nursing home selected by LM. LM's visits to MM were reinstated in the new nursing home.
On 21 September 2008, LM applied to the Tribunal for a review of the order appointing the Public Advocate limited guardian and proposed that she take on the role of guardian.
The application for review was heard on 11 November 2008. Oral reasons for the decision were given at the conclusion of the hearing. These written reasons are provided at the request of LM, pursuant to s 78 of the State Administrative Tribunal Act 2004 (WA).
Written information provided to the Tribunal prior to the hearing
A report dated 16 August 2008 from MM's current general practitioner (Dr F). Dr F said that MM has Alzheimer's disease, chronic urinary tract infections (UTI) and cancer of the breast. Dr F assessed MM as incapable of making reasonable judgments about any major aspect of her life. All parties at the hearing agreed with this assessment.
A report dated 7 August 2008 from IC, the director of the nursing home, in which she said that she wants the Public Advocate's appointment to continue. IC advised that it is only six months since MM moved into the current nursing home and, given the history of serious breakdown in the relationship between LM and the previous nursing home, 'it is too early to assess conflict issues with [LM] given the prior history that occurred' at the previous nursing home.
A submission from LM on 20 September 2008 which included emails and letters to various parties, including the guardian, IC, and LM's siblings. In this submission, LM outlined her concerns about the medical and general care and the quantity and quality of food being provided to MM by the nursing home. LM also outlined her concerns about MM's weight and her requests of staff (which she said were ignored) for regular updates in relation to this. LM expressed concerns that staff of the nursing home are not communicating adequately with her about MM's care.
A report from the guardian which detailed the decisions and involvement of the guardian since her appointment on 28 March 2008 and her recommendation that the current guardianship order continue. The guardian stated that she had been advised by both the nursing home and OM, son of MM, that he and his other brother 'strongly support the continuation of the current guardianship order. Furthermore [OM] told the delegated guardian that, in his opinion, the situation had not changed at all'.

Hearing

The hearing was attended by:
•LM, the daughter;
•OPA, the guardian; and
•IC, the director of the nursing home (by telephone).
There was discussion about the fact that MM had, on a couple of occasions, passed 'purple urine'. The guardian reported that this had been medically investigated but no identifiable cause had been found. Dr F had advised the guardian that a possible cause of the purple urine could be a UTI but this had been ruled out medically. He said another possibility was that food or drink colouring could have affected the urine.
The guardian said that as a result of the unexplained purple urine, the nursing home had decided to reinstate an 'open door policy', which means that doors to residents' rooms remain open when visitors are present. This was reintroduced, according to the guardian, 'to avoid any possible risk of harm to any residents, because we didn't know what the cause of the purple urine might have been and the public advocate supported that decision for [MM]' (T:[5]). IC said that the nursing home had refused LM's request to have the door closed during her visits with MM, because there remained concerns about the fact that an unknown person may have given MM something untoward which resulted in the purple urine. LM explained that she had researched purple urine on the internet and had found out that 'it is what is known as purple urine, purple bag urine syndrome or something to that effect, which seems to be ‑ goes hand in hand with long‑term chronic catheterisation, which is what [MM] has' (T:[7]).
The guardian said that in August 2008, based on medical advice, she had agreed that MM should no longer be given water or 'thin fluids'. She said this had led to some 'tension between [LM] and staff' (T:[11]) of the nursing home, as LM ignored this directive and continued to give MM water. LM said she had not ignored the directive in relation to the thin fluids. She said there had been some miscommunication, as she had not been informed that MM was no longer able to have water but had been advised by a nursing staff member that the guardian had directed that she, LM, was no longer able to feed MM. This, said LM, is what caused the tension between her and the staff. This apparent misunderstanding is confirmed in LM's letter of 13 August 2008 to IC which forms part of LM's submission to the Tribunal. In this letter, LM states that she had been advised by a staff member that the guardian had 'instructed that I was not allowed to feed [MM] until Monday 11 August [2008]'.
IC confirmed that there had been tension between staff and LM in the recent past but she said that things appeared to have been more settled recently. IC explained that the frequency with which LM enquires about MM's eating, weight gain or loss, LM's insistence that MM be provided with more food, and the fact that LM's enquiries are often made after hours when staff do not have ready access to the required information, leads to staff stress and tension.
The guardian said that, because of some incidences of misunderstandings resulting in a potential breakdown in the working relationships between the staff and LM, she believes there is a need for the continued involvement of a guardian independent of the family. This was endorsed by IC, who acknowledged the attempts made by LM to modify her behaviour so that she does not come into conflict with the staff. The guardian said that she has noticed a positive change in LM's behaviour over time as she has begun to trust the nursing home and staff to care appropriately for MM.
IC said she feels that it is in everyone's best interests that the status quo with regard to the appointment of an independent guardian remains for a time. The guardian confirmed this and recommended that the Public Advocate continue to be the guardian, because 'having the guardian in place has been a strong influence on maintaining that good relationship' (T:[6]) between LM and the nursing home.
LM does not agree with the continued appointment of the Public Advocate, because, she says, MM would want a family member to advocate for her and to act as her guardian. She explained that the appointment of the Public Advocate was not working in MM's best interests as, in her view, MM is just a number to the guardian, who does not react as quickly to investigate and resolve concerns as would a family member.
LM said she had received an email that morning from her brother, OM, stating that he is happy for her to be appointed guardian. The guardian said, as outlined in her written report, that she had recently spoken to OM, who said that both he and LM's other brother, KM, want the Public Advocate to continue in the role of guardian for MM.
The guardian said that during the six months the guardianship order had been in place, LM had 'raised many concerns with regard to [MM]'s hydration, food rate, alternative therapies, matters such as her clenched fists and the public advocate has endeavoured to pursue the health professionals' views in that regard … and the public advocate has been satisfied with the reports that have come from those sources' (T:[5]). The guardian reported that LM is 'constantly' seeking updates of staff and the guardian on MM's condition. The guardian said she trusts the health professionals and is comfortable in the knowledge that she will be notified if there are changes in MM's medical condition or needs.
LM said that if she is concerned about MM's health, she has to make an appointment to see the doctor and is charged a fee to get information about MM's health. The guardian explained that Dr F does, on occasions, charge a fee to provide reports on MM's condition. This appears to be when reports are requested as a result of LM's general concerns about MM's weight and diet etc. IC advised that there should be no need for a doctor's report for general things, as any concerns LM has about issues such as MM's weight can be addressed and resolved by the staff of the nursing home. LM said that, because MM's weight had dropped significantly in the previous nursing home, she had requested that the current nursing home provide her with MM's admission weight, and this had not been done. The guardian explained that rather than the staff being required to 'constantly' update LM about MM's health, the guardian feels confident that the staff and Dr F will notify her if there are any changes or concerns in relation to MM's condition.
IC said that tensions had arisen between the staff and LM because of the frequency with which LM questions many aspects of MM's care. The fact that LM's questions are often of staff in the evenings when they do not have ready access to the requested information ‑ such as MM's current weight ‑ and staff are busy, adds to the volatile mix of emotions. LM said that she is happy with the care that MM is receiving from the current nursing home which she said is 'fantastic' (T:[15]).

Legislation

The principles to be observed by the Tribunal when making determinations in relation to guardianship applications are set out in s 4(2) of the Guardianship and Administration Act 1990 (WA) (GA Act).
These principles are:
(a)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(b)Every person shall be presumed to be capable of ‑
(i)looking after his own health and safety;
(ii)making reasonable judgments in respect of matters relating to his person;
(iii)managing his own affairs; and
(iv)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(c)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(d)A plenary guardian shall not be appointed under section 43(1) of (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(e)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(f)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.
On receipt of an application for review under s 86 of the GA Act, except in the case of the Public Advocate, a represented person or a guardian or an administrator, the Tribunal must give leave under s 87 of the GA Act to an applicant to apply for review. In this case, LM was a person to whom leave must be granted.
Section 87(5)(a) and s 87(5)(b) of the GA Act provides:
(5)The State Administrative Tribunal may ‑
(a)refuse the request; or
(b)if it is satisfied that because of a change of circumstances or for any other reason a review should be held, grant, either unconditionally or subject to any condition, leave to the person to apply for the review.
The Tribunal was satisfied, in accordance with s 87(5)(b) of the GA Act, that LM's concerns about MM's best interests were sufficient reason for a review to be held and therefore granted leave to her to apply for the review.
Section 90 of the GA Act outlines the powers of the Tribunal to confirm, amend or revoke an order and to appoint a new or additional guardian or administrator.
Section 90, Powers of State Administrative Tribunal on review, provides:
(1)Upon a review of a guardianship order or administration order, the State Administrative Tribunal may, as it considers necessary in the best interests of the represented person, confirm the order or by order ‑
(a)amend the order so as to make any provision that may be included in a guardianship order or administration order, as the case may be;
(b)revoke the order, or revoke the order and substitute another order for it; or
(c)without limiting paragraphs (a) and (b) ‑
(i)revoke the appointment of any guardian or administrator;
(ii)appoint a new or additional guardian or administrator;
(iii)appoint an alternate guardian.
(2)A review under this Part is in the State Administrative Tribunal's original jurisdiction.

Findings and reasons

Because of the presumption of capacity in the GA Act, each time the Tribunal reviews the order, the issue of capacity must once again be addressed. In this case, the written medical and para‑medical evidence provided to the Tribunal is consistent with the oral evidence provided at the hearing that MM is unable, because of her advanced dementia, to make reasonable judgments in relation to any aspect of her life.
All parties agreed that MM is in the final stages of dementia and is no longer able to look after her own health and safety, is unable to make reasonable judgments in respect of matters relating to her person and is in need of oversight, care and control in the interests of her own health and safety. The Tribunal accepts this evidence and finds that MM satisfies the criteria set out in s 43 of the GA Act and is a person for whom a guardianship order can be made.
Unfortunately, because of her advanced dementia, the Tribunal was unable to ascertain MM's wishes with regard to the appointment of a guardian, but was informed by LM that MM would want her to be the person to make decisions for her and that she would not want the Public Advocate to be appointed to do so. The Tribunal accepts that LM, from all the evidence before it, is the person who, historically, has had the closest relationship with MM. There is no doubt that LM loves and cares for MM, as evidenced by her daily visits and the time she takes to feed MM and attend to her needs. The Tribunal is of the view that even if MM was to express a wish to have LM appointed as her guardian, it would not currently be in her best interests that such an appointment be made.
Evidence was provided in the hearing and, to some extent, confirmed in LM's written submission and emails, that the relationship between LM and nursing home staff is somewhat tenuous, with staff on occasions feeling pressured by LM's intense scrutiny of their care practices in relation to MM.
The Tribunal is concerned that in her attempts to control every aspect of MM's daily care, LM is in danger of alienating nursing home staff and carers. This would not be in MM's best interests and, in the view of the Tribunal, could compromise the level of care she receives.
Both the guardian and IC indicated in their written and oral evidence that although LM has endeavoured to modify her behaviour, resulting in a noticeable reduction in tension between her and staff, it is too soon (six months) to know whether the relationship between LM and staff and carers will survive the intense scrutiny to which they are put by LM who, although she says the level of care provided by the nursing home is 'fantastic', continues to scrutinise every aspect of MM's care. Both the guardian and IC recommend that the current guardianship order remain in place, at least until it is clear whether the relationship between LM and the nursing home is a viable one.
Although neither of MM's two sons attended the hearing, the guardian spoke with OM, who said that he and his brother, KM, both want the current order to continue. LM said that OM had informed her by email on the morning of the hearing that he was happy for her to take on the role of guardian. The Tribunal is of the view that if OM had wanted to provide the Tribunal with a different view to that which he had provided orally to the guardian, he would have either attended the hearing or provided the Tribunal with the information in writing. Without hearing directly from OM as to why he may have changed his mind, the Tribunal attaches little weight to the email referred to by LM.

The Tribunal finds that it is in MM's best interests to have a guardian appointed who is independent of the family, who can make informed and objective decisions about MM's care and welfare, including where she should live and with whom she should have contact, and to make decisions in relation to her medical care and treatment. It is clear from the evidence before the Tribunal that LM is the person who provides the majority of the care and support to MM and has, historically, always been the person to do so. There is no reason why this should not continue with the guardianship order in place.

Conclusion

Evidence was provided by both the guardian and IC that LM has successfully modified her behaviour and interactions with staff recently and, if this continues, it may be that in the future she will be suitable to take on the role of guardian. For this reason, the Tribunal, while confirming the appointment of the Public Advocate as limited guardian, is making the appointment for only one year. At the end of that time, it should be clear whether LM is a suitable person to take on the role of guardian.

Order

The Tribunal makes the following order:
The appointment of the Public Advocate as limited guardian for a period of one year.

I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D DEAN, MEMBER