LM and MM
[2008] WASAT 106
•15 MAY 2008
LM and MM [2008] WASAT 106
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 106 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2569/2007 | 28 MARCH 2008 | |
| Coram: | MS D DEAN (MEMBER) MS H LESLIE (SENIOR SESSIONAL MEMBER) MS M JORDAN (SENIOR SESSIONAL MEMBER) | 15/05/08 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Public Advocate appointed limited guardian | ||
| B | |||
| PDF Version |
| Parties: | LM MM |
Catchwords: | Application for guardianship Need for a guardian Need for an administrator Need for an independent decisionmaker Public Advocate appointed limited guardian |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4(2), s 43, s 44, s 51, s 51(2)(g) |
Case References: | Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : LM and MM [2008] WASAT 106 MEMBER : MS D DEAN (MEMBER)
- MS H LESLIE (SENIOR SESSIONAL MEMBER)
MS M JORDAN (SENIOR SESSIONAL MEMBER)
- Applicant
AND
MM
Represented person
Catchwords:
Application for guardianship - Need for a guardian - Need for an administrator - Need for an independent decisionmaker - Public Advocate appointed limited guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 43, s 44, s 51, s 51(2)(g)
(Page 2)
Result:
Public Advocate appointed limited guardian
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):
Nil
(Page 3)
Summary of Tribunal's decision
1 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.
2 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.
3 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.
4 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.
Background
Evidence provided to the Tribunal prior to the first hearing
5 In addition to the written application the following written information was provided to the Tribunal prior to the hearing:
• Several letters and submissions from LM, the applicant, outlining her concerns about the standard of care provided by H Nursing Home to MM. In these submissions were included copies of emails and letters between LM and various parties. Additional material filed by LM included copies of her complaint to the Department of Health and Ageing (Department), their response
- dismissing her complaint; her appeal and the dismissal of the appeal and her request for a review of the appeal process. The department found that the nursing home had not breached their responsibilities under the Aged Care Act 1997(WA).
- • Submission from solicitors representing LM dated 27 February 2008 requesting an adjournment of the hearing to allow time to take instructions from their client.
• Copies of letters in support of LM provided by solicitors representing LM.
• Submissions dated 18 January 2008 and 12 February 2008 from solicitors representing H Nursing Home, outlining the conflict between LM and the nursing home and providing copies of correspondence between various parties in relation to this. A number of applications for restraining orders had been filed by staff against LM. These were later withdrawn following an initial hearing in the Magistrate's court on 31 January 2008.
• Report dated 12 November 2007 from Dr B, GP, for MM for the last three years. Dr B referred to a diagnosis of "severe Alzheimer's Dementia". He assessed MM as incapable of making reasonable judgments in relation to any major life decisions including accommodation and medical treatment. He further stated that it would be detrimental to her health if she were to attend the hearing and that she would have no contribution to make if she did attend. In a later discussion with the Public Advocate, Dr B advised that he has no concerns about the care MM is receiving at H Nursing Home.
• Report dated 4 January 2008 from DW, Director of Nursing, H Nursing Home providing a psychosocial history and reporting a diagnosis of "advanced dementia disoriented to time and place. Unable to follow instructions or converse. Repeats her name and rocks her doll - often agitated and distressed".
(Page 5)
- • Report from the Public Advocate dated 25 January 2006 [sic] recommending, because of the level of conflict in the family and between LM and the nursing home, the appointment of an independent decisionmaker. This report advised that LM's sister P who lives in Spain and her two brothers OM and KM do not support the appointment of LM. DH, another sister, resides in Ireland and supports the appointment of LM.
• A bundle of documents provided by the solicitor representing LM dated 13 March 2008. Included in these documents is LM's statement outlining the history of her concerns in relation to the care received by MM at H Nursing Home, a history of the relationship between LM and MM, copies of correspondence between various parties and information in relation to the conflictual relationship between H Nursing Home and MM.
Hearing
6 The hearing was attended by LM, the applicant and daughter of MM; TO, solicitor representing LM; OM, son of MM; the Public Advocate (OPA); DW, the Director of Nursing of H Nursing Home; and BT, solicitor representing H Nursing Home.
7 It was agreed by all parties that, given her advanced dementia which had been diagnosed some years previously, MM no longer has the capacity to make reasonable decisions for herself.
8 It was agreed that there is a need for a guardian to make decisions on behalf of MM, the point of difference was who that guardian should be.
9 Through her solicitor LM outlined her position in relation to this point. She submitted that, despite her serious concerns about the quality of care received by MM in the current nursing home, she does not wish to move MM until a suitable alternative is available. She further submitted that she is currently banned by the nursing home from visiting MM and this is causing both MM and herself considerable distress as she has been the primary carer and support person for MM for the last eight years. When OM was asked if he thought it was an issue for his mother that LM was not currently able to visit, he responded, "She's probably not aware of it": (T:12).
(Page 6)
10 LM submitted that she is not prepared to accept the terms on which the nursing home will allow her to visit and therefore she has not visited the nursing home since 4 February. She last saw MM on 3 March when she was in hospital. During the period she has not been able to visit MM, LM submits that MM has lost three and a half kilos. In the five days MM was in hospital she put the weight back on. LM rings the nursing home daily to get updates on MM's condition. DW said that MM's weight fluctuates between one and two kilos and that "her BMI is 21 which is absolutely fine". "She is as stable as she has ever been": (T:19).
11 LM submitted that there is a need for a guardian to be appointed to make the decision about appropriate accommodation and medical treatment for MM. LM has been making all the medical decisions for MM until now. Whenever significant medical decisions are to be made LM submitted that she consults with her two brothers who keep her sister informed about these decisions. LM acknowledged that her relationship with her brothers is "strained" as a result of her belief that they mismanaged MM's finances while acting under an enduring power of attorney (EPA). The EPA was revoked by the Tribunal and LM was appointed plenary administrator on 28 February 2005. Since the appointment the brothers have reimbursed the estate a significant amount of money. LM submits that this is an indication of her determination to act in the best interests of MM which she would do if appointed guardian.
12 LM also submitted that she would welcome the intervention of an independent person to negotiate the issue of her banning from the nursing home and to reinstate her contact with MM: (T:24).
13 In relation to her proposal to move MM to more suitable nursing home accommodation, LM submitted that she and her brother K visited a possible suitable alternative nursing home in Shelley in early 2007. The move to the new accommodation was planned but aborted by LM when she assessed MM on the day as not well enough for the move. H Nursing Home were unaware of this planned move, neither, it appears, were the brothers consulted about the decision made by LM not to move MM. LM acknowledged that she had not consulted MM's doctor as to the effect on her health, should she be moved, nor had she consulted her mother's carers at the Nursing Home at the time. LM said that the day after making the decision not to move MM she contacted the new nursing home saying she may have made a hasty, wrong decision but it was too late to reconsider as the the bed had been taken. LM acknowledged that if she is appointed guardian to make accommodation decisions and if a
(Page 7)
- similar situation arose she would make the decision and inform other family members later.
14 There was considerable discussion about the current ban in relation to LM visiting the nursing home. It was accepted that the appointment of LM as guardian would not in itself resolve the current stalemate. LM submitted that her desire to commence visiting MM is the main reason she is keen to arrange for MM to move to a new nursing home as soon as practicable.
15 OM said that, unlike LM, he has no concerns about the quality of care received by MM at H Nursing Home and sees no reason for her to be moved. He finds it convenient to visit her there. He said that he and his brother visit their mother regularly. There are two to three visits a week from either he or his brother. He lives in West Perth and his brother in Scarborough where they both work. The present nursing home is in Subiaco. He said that although the alternative nursing home LM is considering in Shelley would be less convenient for him and his brother to visit, he would still visit: (T:15). The proposed Shelley home is closer for LM, who lives in Attadale: (T:20). LM is also considering a nursing home in the Leederville area. When asked if she had discussed with her brothers which of the two proposed alternative care placements they would prefer, she acknowledged that she had not: (T:24).
16 OM said that he and LM have not spoken to one another for three years and he is not kept informed by LM of issues in relation to MM. LM submitted through her solicitor that she keeps in touch with her other brother K. OM said that although he and K work together and see each other every day he isn't aware of any regular contact between K and LM or information being shared about MM. LM said that she has sent two or three emails to the business address of the brothers and to K's home email informing them about the problems with the nursing home. LM acknowledged that she has not discussed with her brothers what nursing home option they would prefer and consider in the best interests of MM.
17 OM said that he accepts that LM, who in the past visited MM daily, is the right person to make medical treatment decisions for MM. OM said he believes that, although he and his brother are not necessarily consulted or kept informed about medical treatment decisions that might be made for MM he is confident that LM would make those decisions in the best interests of MM. Similarly, he thinks LM would make accommodation decisions in the best interests of MM but he expressed concern that LM has a tendency to get into conflictual relationships with others and
(Page 8)
- this is evidenced by the situation that has developed between her and H Nursing Home. He said that "she antagonises everybody and with the extra power [as guardian] she would antagonise more people. I would prefer to have an independent person in that position". LM "can't keep emotion out of any decision she makes": (T:27).
18 BT submitted that there is a need for the appointment of an independent guardian to make decisions in respect of medical treatment and accommodation and this needs to be someone who has contact with and is able to visit with MM. BT reported that the company that manages H Nursing Home has a number of other nursing homes in Western Australia and New South Wales with a total of over 1200 beds. He said that this is the first time a party has been banned in this manner from visiting a resident: (T:17). The nursing home would be comfortable with the appointment of an independent guardian with whom to negotiate satisfactory contact conditions between LM and MM and to arrange a move to another nursing home for MM if that was considered in her best interests.
19 BT pointed out that LM has made several complaints about the quality of care provided by the nursing home for MM. These complaints have been investigated by the Commonwealth Department of Health and Ageing and have been found to have no substance. BT said that H Nursing Home have had no success in working with LM in the past and this would not change if she were appointed guardian for MM. Both the nursing home and LM describe the relationship as "toxic". The nursing home, in the past two years, has tried unsuccessfully to work with LM to resolve the perceived problems and has put in place arrangements that they have not needed with other residents such as weekly meetings and regular updates on MM's care. The nursing home offered alternative placements in one of their other nursing homes. LM said that, given the problems she has experienced with H Nursing Home she is not willing to try one of the offered alternatives. H Nursing Home also offered the services of a social worker to assist LM find satisfactory alternative accommodation for MM. LM disputed that the problems in the relationship have been present for two years citing the positive working relationship she has had in the past with the previous director of nursing and the clinical nurse manager.
20 After hearing the evidence provided in the hearing, OPA advised that in her opinion it is in the best interests of MM that an independent decision maker be appointed to make decisions about her accommodation, health care and
(Page 9)
- contact with others. OPA further advised that a move at this stage for MM, who has advanced dementia, may be detrimental to her health and well being.
Legislation
21 The principles to be observed by the Tribunal when making determinations in relation to guardianship and administration applications are set out in s 4(2) of the Guardianship and Administration Act 1990 (WA) (GA Act).
22 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) 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.
(Page 10)
- (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."
23 Section 43 of the GA Act provides that, where the Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made:
"(1) …
(a) has attained the age of 18 years;
(b) is -
(i) incapable of looking after his own health and safety;
(ii) unable to make reasonable judgments in respect of matters relating to his person;or
(iii) in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and
(c) is in need of a guardian,
the Tribunal may by order declare the person to be in need of a guardian …"
"(1) A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has
- consented to act and who in the opinion of the State Administrative Tribunal -
- (a) will act in the best interests of the person in respect of whom the application is made;
(b) is not in a position where his interests conflict or may conflict with the interests of that person; and
(c) is otherwise suitable to act as the guardian of that person.
- (2) For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible -
(a) the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b) the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;
(c) the wishes of the person in respect of whom the application is made; and
(d) whether the proposed appointee will be able to perform the functions vested in him.
(3) Where a proposed appointee is a relative of the person in respect of whom the application is made, he shall not by virtue only of that fact be taken to be in a position where his interests conflict or may conflict with those of that person.
(4) The fact that a person is the administrator of the estate of a person does not disqualify him from being appointed as guardian of that person.
(5) Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act."
(Page 12)
25 Section 51 of the GA Act provides that a guardian must act in the best interests of the person and in particular (s 51(2)(g)) act in such a manner as to maintain any supportive relationships she has.
26 Section 51:
"(1) Subject to any direction of the State Administrative Tribunal, a guardian shall act according to his opinion of the best interests of the represented person.
(2) Without limiting the generality of subsection (1), a guardian acts in the best interests of a represented person if he acts as far as possible -
(a) as an advocate for the represented person;
(b) in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c) in such a way as to encourage and assist the represented person to become capable of caring for himself and of making reasonable judgments in respect of matters relating to his person;
(d) in such a way as to protect the represented person from neglect, abuse or exploitation;
(e) in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions;
(f) in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g) in such a way as to maintain any supportive relationships the represented person has; and
(h) in such a way as to maintain the represented person's familiar cultural, linguistic and religious environment.
(Page 13)
- (3) Nothing in subsection (2)(a) shall be read as authorising a guardian to act contrary to the Legal Practice Act 2003."
Findings and Reasons
Capacity
27 Medical and paramedical evidence provided to the Tribunal is consistent in the assessment of MM as no longer, because of her advanced dementia, having the capacity to make reasonable judgments in relation to her medical and health care needs, appropriate accommodation options or her contact with others.
28 The Tribunal accepts this evidence and finds that MM satisfies the criteria set out in s 43 of the GA Act that she is a person for whom a guardianship order can be made.
Need for a guardian
29 Having made a finding that the person no longer has the capacity to make reasonable judgments for herself, the Tribunal must then address the issue of the need for a guardian.
30 In this case there is a need for a decision maker in respect of the most appropriate longterm accommodation option for MM as well as for her medical treatment, health issues and contact with others.
31 Having found there is a need for a guardianship order the Tribunal must consider whether there is a less restrictive alternative to making an order. In this case, although family members agree that LM has the closest relationship with MM, there is significant conflict between LM and other parties resulting in LM, by her own admission, making decisions in relation to MM without consultation with other family members and in many cases not even informing them of decisions she has made.
32 The Tribunal finds that MM is in need of a guardian to make decisions in relation to where she is to live, to consent to any treatment or healthcare she may require and to determine what, if any, contact she may have with others.
Wishes and best interests
33 The Tribunal endeavours to take into account, where possible, the views and wishes of the represented person but the overarching principle guiding the Tribunal in its decisionmaking is the best interests of the represented person.
(Page 14)
34 In this case, the Tribunal was unable to ascertain the wishes of MM but had evidence before it, which was not contested, that LM has, for many years, been the major provider of care and support for MM. The Tribunal is in no doubt about the level of devotion and care LM has lavished on MM in those years, unfortunately, in her attempts to ensure care of the highest quality for MM, LM has alienated staff of H Nursing Home to the point that she has been banned from entering the premises and visiting MM.
35 The Tribunal heard evidence in support of OM's claim that LM has a tendency to get into conflictual relationships with others, including her own siblings. The conflict between the siblings has resulted in them generally not being consulted by LM about MM's medical treatment, care or accommodation needs.
36 Although OM provided evidence that he believes LM's decisions are in MM's best interests, he stated that he does not believe LM should be appointed MM's guardian because of her tendency to alienate others. He believes this tendency would be compounded because of the additional power LM would be perceived to have, by herself and others, if formally appointed guardian.
37 Although there was no suggestion that the problems experienced by the staff with LM have impacted in any way on the quality of care provided to MM, it is clear that it is not in MM's best interests to have her primary support person and advocate in a highly conflictual relationship with her carers. If only because issues related to MM's care could become lost in the quagmire of conflict and defensive behaviour surrounding those charged with her care.
38 In summary, LM submitted that she is the appropriate person to make all decisions for her mother as she is the person who has her mother's best interests at heart and she is the one who has, until recently, seen her mother on a daily basis and undertaken her care for several years. She considers that the care her mother now receives is less than optimal and wishes to move her as soon as possible to alternative accommodation she has approved.
39 The Tribunal accepted OM's evidence that LM cannot keep emotion out of her decisionmaking and has a tendency to antagonise persons with whom she has any disagreement. Additional evidence was provided that LM is
(Page 15)
- uncompromising in her attitude and has been unwilling to resolve the dispute which has kept her from having access to MM with whom she had previously visited on a daily basis.
40 The Tribunal found that, because of her difficulties with personal relationships and her unwillingness to consult with her siblings prior to making major decisions in relation to MM, and to merely inform them after the event, LM is not a suitable person to make such decisions for MM. Section 51(2)(g) of the GA Act clearly mandates a guardian to act in such a manner as to maintain any supportive relationships the person has. In this case, MM's major supportive relationships are with her children who are not being included in decisions about her accommodation, health and welfare.
Decision
41 The Tribunal finds that there is no less restrictive alternative to making a guardianship order and appoints the Public Advocate limited guardian for a period of one year to make decisions in respect of where and with whom MM is to live, to consent to any treatment and health care she receives and to make decisions in respect of her contact with others.
42 The guardianship order is made for one year by which time it will be reviewed. It is hoped that by that time, the present stalemate between LM and the H Nursing Home will have been resolved and consideration can be given to a family member taking on the role of decisionmaker.
43 The decision to appoint the Public Advocate to make the decision about accommodation was made by majority with one Tribunal member dissenting in relation to this decisionmaking function.
I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D DEAN, MEMBER