LT and RT & JS
[2008] WASAT 98
•13 MAY 2008
LT and RT & JS [2008] WASAT 98
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 98 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2297/2007 | 8 FEBRUARY 2008 | |
| Coram: | JUDGE J ECKERT (DEPUTY PRESIDENT) MR J JAMES (SENIOR SESSIONAL MEMBER) MS V O'TOOLE (SENIOR SESSIONAL MEMBER) | 13/05/08 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | RT appointed J's limited guardian to consent to her treatment and health care and accommodation decisions. Public Advocate appointed J's limited guardian to determine what contact JS should have with others. The guardianship orders to be reviewed by 26 October 2012. | ||
| B | |||
| PDF Version |
| Parties: | LT JS RT |
Catchwords: | Review s 17A Guardianship order Capacity Need Family conflict |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 17A, s 97, s 119, Part 8 State Administrative Tribunal Act 2004 (WA), Div 3, s 17, s 27(1), s 27(2), s 29, s 31, s 32 |
Case References: | Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : LT and RT & JS [2008] WASAT 98 MEMBER : JUDGE J ECKERT (DEPUTY PRESIDENT)
- MR J JAMES (SENIOR SESSIONAL MEMBER)
MS V O'TOOLE (SENIOR SESSIONAL MEMBER)
- Applicant
AND
JS
Represented Person
AND
RT
Plenary Guardian
Catchwords:
Review s 17A Guardianship order Capacity Need Family conflict
(Page 2)
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 17A, s 97, s 119, Part 8
State Administrative Tribunal Act 2004 (WA), Div 3, s 17, s 27(1), s 27(2), s 29, s 31, s 32
Result:
RT appointed J's limited guardian to consent to her treatment and health care and accommodation decisions.
Public Advocate appointed J's limited guardian to determine what contact JS should have with others.
The guardianship orders to be reviewed by 26 October 2012.
Category: B
Representation:
Counsel:
Applicant : N/A
Represented Person : N/A
Plenary Guardian : N/A
Solicitors:
Applicant : N/A
Represented Person : N/A
Plenary Guardian : N/A
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 LT, the sister of the represented person JS, applied under s 17A of the Guardianship and Administration Act 1990 (WA) to review a decision by a single member of the Tribunal to appoint their brother RT plenary guardian for JS. JS is a 38-year-old woman with depression and congenital Downs Syndrome. She has high care needs and currently lives in a residential facility. Prior to 2004, she lived a very sheltered life with her mother and had very few social and living skills. Since moving to the residential facility she has developed many of these skills and is continuing to improve. However, the evidence before the Tribunal was that she would need high level long term care.
2 There is conflict in the family between LT and RT. LT sought review of the decision appointing RT plenary guardian because she said RT does not let her have regular contact with JS. The residential facility, RT and JS's counsellor believe that contact between JS and LT is not in the best interests of JS.
3 The Tribunal found that JS lacked capacity to make decisions regarding her health, she lacked capacity to make reasonable judgement in respect of matters relating to her person and that she is in need of oversight care or control in the interests of her own health. The Tribunal concluded that there was the need to appoint a guardian for JS and that there was no less restrictive means of meeting her needs. The Tribunal was of the view that RT was a suitable guardian for JS to make decisions about her health and care and where she lived. However, because of the conflict between RT and LT and because another brother MT was not suitable to be appointed limited guardian, the Public Advocate was appointed as limited guardian for JS to make decisions regarding who JS has contact with.
Background
4 These reasons relate to an application under s 17A of the Guardianship and Administration Act 1990 (WA) (the Act) to review a guardianship order for a 38-year-old woman with congenital Downs Syndrome. The following people attended the review hearing as did representatives of the Public Advocate:
• LT - JS's sister and the applicant in these proceedings;
• RT - JS's brother and plenary guardian;
(Page 4)
- • ET - JS's sister-in-law and RT's wife;
• MT - JS's brother;
• LC - a representative of the residential facility where JS lives; and
• GC - JS's social worker counsellor.
5 The initial application for guardianship and administration was made by RT. It was heard by a single member of the Tribunal and RT was appointed plenary guardian and administrator. LT sought review of the guardianship order on the grounds that she says RT does not allow her to have contact with her sister JS, and that the initial hearing progressed without her knowledge. In her application, LT sought an order that an independent guardian be appointed.
6 The first hearing of the s 17A review on 14 January 2008 was adjourned because LT could not attend due to sudden illness. JS was also not present and we made it clear that we needed to hear from JS as to her wishes regarding the guardianship order.
7 We then heard the s 17A review on 8 February 2008. The Tribunal was constituted as a Full Tribunal as required by the Act.
8 Towards the end of the hearing, LT became emotional and abruptly left the hearing, stating that she would withdraw the application. We did not give her leave to withdraw the application.
9 We reserved our decision and now provide it with our written reasons.
Section 17A review by a Full Tribunal
10 Where a single member of the Tribunal makes a decision regarding a person, a party aggrieved by the decision of that single member may request the President of the Tribunal to arrange a Full Tribunal to review the decision. We are satisfied that LT is a party to the initial decision and that she is aggrieved by the decision.
11 When we consider a matter under s 17A of the Act, we do so in the Tribunal's review jurisdiction and therefore s 17 to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) applies to these review proceedings. We look at the initial decision by way of a hearing de novo. That is, we hear it afresh. This means that we do not need to find an error or fault in the initial decision; the applicant has the right to have the initial decision reviewed and
(Page 5)
- need not show that there was any underlying error or problem with it. We are not confined to matters or evidence that were before the single member but we may consider new material whether or not it existed at the time the initial decision is made (s 27(1) of the SAT Act). Under s 27(2) of the SAT Act "[t]he purpose of the review is to produce the correct and preferable decision at the time that" the decision is reviewed. Under s 29(5) of the SAT Act, the decision of the Full Tribunal becomes the decision of the Tribunal. Section 29(3) of the SAT Act provides that on a review:
"The Tribunal may
(a) affirm the decision that is being reviewed;
(b) vary the decision that is being reviewed; or
(c) set aside the decision that is being reviewed and -
(i) substitute its own decision; or
(ii) send the matter back to the decision-maker for reconsideration …
and, in any case, may make any order the Tribunal considers appropriate."
13 Prior to the hearing we had read:
(1) LT's application for a s 17A review;
(2) the transcript of the initial hearing on 26 October 2007;
(3) RT's initial application for guardianship order (28 August 2007);
(4) two submissions from LC (24 October 2007 and 5 February 2008);
(5) report from JS's residential facility (5 February 2008);
(6) JS's bank statement;
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- (7) Public Advocate liaison officer recommendation for investigation (19 September 2007);
(8) report from Dr Otto Fehmers, JS's GP (10 September 2007);
(9) primary carer and social work report completed by LC (6 September 2007);
(10) Report from GC (3 September 2007);
(11) JS's mother's will and grant of probate; and
(12) RT's police clearance.
14 We heard evidence from all of those who attended the hearing and in particular from JS.
Principles to be observed
15The initial application stated that an order for guardianship was needed to safeguard JS from exploitation and stress caused by LT and to prevent JS leaving her present care and accommodation.
16 In her report, LC requests that a plenary guardian be appointed to plan for JS's future needs with respect to lifestyle choices and medical issues. The doctor's report, GC's report and evidence from family members also support the conclusion that JS lacks the capacity to look after her own health and safety and that she is therefore in need of a guardian.
17 Section 119 of the Act sets out the persons who may consent to medical and dental treatment in order of a hierarchy. Unless there is an appointed guardian, s 119(d) would require the nearest relative who maintains a close personal relationship to be the substitute decision-maker for health matters.
18 In this case, the elder brother MT is the nearest relative. However, MT has relatively less contact with JS than RT, and he is also not willing to make these decisions. Due to his personal circumstances, he would prefer that RT take on the role. A guardian for health decisions is therefore needed.
19 In her application, LT states that there is a need for a different substitute decision-maker for JS, to ensure that LT is given proper and adequate contact with JS. LT also stated that JS “was extremely distressed” about her living
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- situation and that it was in her best interest for the two of them to maintain contact.
20 RT, LC, and GC were all concerned that JS would at times wish to change her accommodation, and this was being encouraged by LT.
21 At times, JS states that she wishes to live with LT. However, LT states that she could not look after her personally, and nor did she wish to take JS out of her current accommodation as she feels the care and support that is provided there is in JS's best interests. She considers that JS “definitely needs assistance with all aspects of living”. However, LT does want to have regular contact with JS.
22 There was consensus from those who attended the hearing about the high care needs of JS. When asked directly, JS stated that she did need “someone to look after (herself) a bit, to help (her)?”
23 RT, LC and GC remained of the view that any contact between JS and LT must be supervised and that contact should occur at most on a fortnightly basis.
24 JS clearly expresses her love for LT and her belief that LT also loves her. LT is obviously a very important person in her life, and we consider that contact between the sisters is in JS's best interest and should therefore be encouraged and facilitated.
25 We are satisfied that there is a need for the appointment of a guardian in the interests of JS’s health and safety.
26 A substitute decision-maker is needed for decisions about JS’s health, accommodation and with whom JS has contact.
JS's wishes
27 When we asked JS who she wishes to be her guardian, she talked about each of her siblings. She recognises that RT is “always concerned about me” but she does not want him to be her guardian. She also does not wish MT to be her guardian. She wants LT to be her guardian “because she has (my) interests at heart and I know that she loves me and I love her very much”. LT has not proposed herself as guardian, whether plenary or limited, and she did not appear to be willing to take on the role.
(Page 8)
Findings about who should be appointed guardian.
28 Under s 4(2)(c) of the Act, we must not make a guardianship order if JS's needs could, in our opinion, be met by other means less restrictive of her freedom of decision and action.
29 As to who should be appointed the guardian, we are guided by s 44 of the Act. The proposed guardian must be at least 18 years of age, must consent to act and must be someone who, in our opinion, will act in JS's best interests. The person must not be in a position where their interests conflict or may conflict with JS's interests. They must otherwise also be suitable to act as JS's guardian.
30 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 JS's family; the compatibility of the proposed guardian and the administrator (RT); JS's wishes; and whether the proposed guardian will be able to perform the functions vested in him or her (s 44(2)). Except where she is appointed to act jointly with another person or persons, we should not appoint the Public Advocate as guardian unless there is no other person who is suitable and willing to act (s 44(5)).
31 The primary reason for LT to request a review of the appointment of RT as plenary guardian is that she says that RT has prevented her from having contact with JS. Evidence at the hearing presented a range of views about whether this is the case, the desirability of contact between LT and JS, and whether it is in the best interests of JS to have contact with LT.
32 The restrictions on contact between LT and JS were based primarily upon RT’s personal conflict with LT, and additionally on advice provided to him by JS’s counsellor, GC.
33 GC had never met LT but has interpreted JS's reaction to phone calls and contact with LT as meaning that contact between the sisters is not in JS's best interests. This was based partly on the perception that JS was sometimes emotional after contact with LT. GC had advised RT of this view and this was a factor in limiting contact between the sisters.
34 The residential facility staff have also had some difficulty in phone conversations with LT when she has been in contact, or has attempted to have contact with JS. The residential facility staff, the counsellor GC and RT have a common belief that if LT has contact with JS, she would encourage her to move out and live with her, which they all consider would not be in JS's best interest. There was also concern that JS would be exploited by LT.
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35 Since RT has been appointed plenary guardian he has instructed that any contact between LT and JS be monitored. This has resulted in phone calls between the sisters being listened in on by staff of the residential facility which we see as a significant invasion of JS's privacy, and it has resulted in constraint in contact with LT.
36 Following the adjourned review hearing, the Office of the Public Advocate mediated contact between LT and JS with RT, and an interim arrangement was tested whereby LT had fortnightly supervised personal contact. Two contacts occurred by the time of the final review hearing. The first of these was with MT and LT, and since this was deemed successful a second contact was allowed, this time with LT and her daughter. Again, this proved to be successful.
37 MT is the eldest sibling of the family, but due to his life circumstances he has less involvement with JS than RT. He considers that contact between LT and JS is very important for JS. He describes the relationship between LT and JS as a loving one, whereas the relationship RT has with JS is a “supportive” one in terms of her welfare. MT has tried to facilitate contact between LT and RT to gain some agreement on what is in JS's best interests, but this has not occurred. MT states that both LT and RT put their own interests and mutual conflict before JS's interests.
38 MT proposed himself as guardian to make decisions regarding contact, but he did not consider himself as suitable as his brother RT to be a guardian for health and welfare decisions.
39 LT proposed that MT should be guardian or, if not, the Public Advocate should be appointed.
40 RT wished to be plenary guardian as he was not happy with MT taking on the role of decision-maker regarding contact. He did agree in the hearing that LT would be able to contact JS on a fortnightly basis. This was based on advice from GC that contact should not be more regular. There was still a view held by the residential facility staff, the counsellor and RT that this contact should continue to be supervised by the staff of the residential facility.
41 We consider that some of the evidence and reports presented in the hearing paint a “black” picture of LT that has not withstood questioning.
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- The relationship between LT and JS is a loving one and is very important to JS. There is a possibility or probability that the basis for JS being upset after contact with LT is a reaction to wanting to have more contact with her, rather than inappropriate or negative messages or behaviour by LT.
42 On the basis of evidence presented, it is clear that there remains an ongoing conflict between RT and LT that is creating a barrier to contact between LT and JS – contact that is very important and in JS's best interests.
43 We consider that contact between LT and JS is in JS's best interests and, due to ongoing family conflict, RT is not a suitable person to be a substitute decision-maker regarding contact.
44 Whilst MT has proposed himself as limited guardian for contact decisions, there is no evidence of his close ongoing relationship with JS. He recognises the importance of LT and JS maintaining a relationship and wishes to facilitate this for JS. However, it is not the wish of JS that he be appointed her guardian. RT is also not supportive of this arrangement. For these reasons, MT is not considered a suitable guardian.
45 It is clear that RT is motivated by JS's best interests in health and welfare; however, the conflict with his sister makes him unsuitable to be her guardian for contact decisions.
46 It is recognised that the trial attempt at allowing supervised contact has been in JS's best interests. It is important that ongoing decisions about contact are made dispassionately, especially given the expressed ongoing reservations of the residential facility and counsellor who influence RT's decisions in this regard.
47 We conclude on the basis of this conflict that there is no-one suitable within the family who is willing and suitable to be a substitute decision-maker for contact decisions.
48 We also find that there is no less restrictive alternative available than to make the appointment of a substitute decision-maker for contact to preserve all family relationships.
49 We therefore decide that the Public Advocate guardian be appointed to make decisions regarding contact.
50 Evidence has been provided that JS is at times quite erratic and childlike in her behaviour and requires significant support to improve her quality of life. The current residential facility/care arrangement is working in JS's best interests
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- at this time, and it is important that there is someone who can make decisions about where she is to live.
51 There is also a need for someone to make decisions regarding health and dental issues. As stated above, s 119 cannot be relied on, as MT is not willing or does not feel able to make these decisions.
52 We therefore order that RT be appointed as limited guardian for medical and accommodation decisions.
Orders
(1) RT be appointed limited guardian of the represented person with the following functions:
(a) to consent to any treatment or health care of the represented person subject to Division 3 Part 5 of the Act;
(b) to decide where the represented person is to live, whether permanently or temporarily;
(c) to decide with whom the represented person is to live; and
(d) to decide which services the represented person requires.
(2) The Public Advocate be appointed limited guardian of the represented person with the function of determining what contact, if any, the represented person should have with others and the extent of that contact.
- (3) These guardianship orders are to be reviewed with the administration order regarding the represented person by 26 October 2012.
I certify that this and the preceding [52] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J ECKERT, DEPUTY PRESIDENT
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