MC
[2024] WASAT 119
•1 NOVEMBER 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: MC [2024] WASAT 119
MEMBER: MS K COBBETT, MEMBER
HEARD: 14 AND 22 OCTOBER 2024
DELIVERED : 22 OCTOBER 2024
PUBLISHED : 1 NOVEMBER 2024
FILE NO/S: GAA 4762 of 2024
MC
Represented Person
HOSPITAL A
Applicant
B
Interested Party
Catchwords:
Guardianship - Administration - Capacity - Best interests - Need for a Guardian - Suitability - Ability to make objective and reasonable judgments - Lack of insight into impact of diagnosis and degree of incapacity - Compatibility with guardian - Public Advocate appointed limited guardian - Public Trustee appointed plenary administrator
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 4(3), s 4(4), s 4(6), s 4(7), s 43(1)(b), s 43(1)(c), s 44, s 44(1), s 44(1)(c), s 44(2), s 44(5), s 51, s 64(1)(a), s 64(1)(b), s 68, s 68(3)(a), s 84(a)
Result:
Office of the Public Advocate appointed limited guardian
Public Trustee appointed plenary administrator
Category: B
Representation:
Counsel:
| Represented Person | : | Non-appearance |
| Applicant | : | In Person |
| Interested Party | : | Mr R Graham |
Solicitors:
| Represented Person | : | N/A |
| Applicant | : | N/A |
| Interested Party | : | Graham & Associates |
Case(s) referred to in decision(s):
ED [2020] WASAT 34
FS [2007] WASAT 202
GC and PC [2014] WASAT 10
MH [2022] WASAT 74
MM [2016] WASAT 62
QW [2007] WASAT 23
RH [2009] WASAT 159
The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161
TL v Office of the Public Advocate [2020] WASC 455
REASONS FOR DECISION OF THE TRIBUNAL
(The application was heard on 14 October and 22 October 2024. An oral decision was delivered on 22 October 2024. The following reasons comprise the reasons that were delivered orally, subject only to minor editing to improve clarity of expression and setting out.)
Introduction
These are my reasons for decision in matter GAA 4762 of 2024 an application by Hospital A for the appointment of a guardian and administrator for MC under the Guardianship and Administration Act 1990 (WA) (GA Act).
MC is a former court typist in her late seventies who has recently suffered a stroke. She has three children and a supportive ex-husband.
MC lives with dementia and has multiple physical conditions which have meant that she has spent a significant portion of the past 2 years in respite care and hospital.
This application was brought by Hospital A on her last admission (September 2024) to help with discharge planning, due to an inability to arrange safe discharge planning for her. It is clear that there has been a breakdown of communication between Hospital A and MC's daughter, B.
Evidence
I have read the Tribunal's file relating to the application which includes:
(1)Application by Hospital A dated 13 September 2024 with accompanying letters from consultant physician and social worker.
(2)Multiple medical reports, service provider reports, medical files, letters from health care providers, discharge summaries and ambulance notes. I have identified those documents which I have relied on in making my decision.
I have also heard oral evidence given by:
(a)B;
(b)MC's ex-husband, J;
(c)Consultant Physician at Hospital A; and
(d)Two social workers at Hospital A.
I have not heard from MC herself, because she is dysphasic (has difficulty speaking) following her recent stroke.
I have not heard from MC's sons. An Aged Care Assessment Team (ACAT) assessment in July 2023 states that MC's son, D was in frequent phone contact with MC. However, D's sister, B has provided evidence in her witness statement that both her brothers have been estranged from MC for more than two decades. The Tribunal was not given any contact information for either of MC's sons.
Background
This application was brought by Hospital A to facilitate safe discharge planning for MC during her previous admission (August - September 2024).
Hospital A provided letters in support of the application, which submit:
(a)MC's admission in September was under the general surgical team for management of mild pancreatitis. She was medically cleared for discharge but was unable herself to decide a discharge destination due to her limited ability to retain complex information.
(b)MC is a vulnerable individual who has had over 10 unplanned hospital admissions since August last year, all admissions have been prolonged due to B's lack of engagement and abusive behaviour towards health staff.
(c)The team at Hospital A tried to engage in safe discharge planning with B. However, MC's discharge was delayed for several weeks due to the disengagement of B. B was difficult to contact, was abusive when she was contacted, and she did not attend planned meetings.
(d)The doctors decided that MC could not go home due to multiple concerns being raised regarding carer fatigue, carer neglect and lack of initiation of services. The letter from the social worker details the concerns raised by different health care professionals involved in MC's care, including ambulance officers, emergency department staff, physiotherapists, occupational therapists, doctors, nurses and social workers.
(e)The multidisciplinary team believed that guardianship and administration should be sought urgently and recommend that the Office of the Public Advocate (Public Advocate) be appointed on the grounds that B was placing her mother at risk.
B is willing to be guardian and administrator. She submits that she wants what is best for her mother and is suitable for appointment. She has provided evidence in support of her position, which I will refer to in due course.
Background information following application
A great deal has happened since the application was made, some of which is disputed. It is agreed by all parties that:
(1)B discharged her mother against medical advice on 21 September 2024.
(2)Staff at the hospital were worried about MC and requested that police conduct a welfare check on her.
(3)Police conducted a welfare check and did not identify any concerns.
(4)The initial hearing of this matter was to be on 26 September 2024.
(5)B instructed a lawyer, Mr Graham the day before the hearing, and he requested an adjournment at the hearing, as he had not yet had an opportunity to review the 500+ pages of medical evidence in this matter. MC herself attended the hearing in a wheelchair. B assured me that her mother was being cared for at home, with Silver Chain nurses checking in on her and a doctor's appointment being booked for the following week. The matter was adjourned until 14 October 2024.
(6)On 30 September 2024, MC suffered another stroke (her first stoke having been in 2021). She was taken by ambulance to Hospital B and later transferred to the stroke ward at Hospital A.
(7)At the hearing on 14 October, MC was unable to attend as she was too physically unwell and dysphasic.
(8)MC is now well enough to be discharged to the rehabilitation ward at Hospital C. Concerns have been raised as to who can consent to her discharge.
I am delivering this decision orally today to ensure clarity for the decision-maker to facilitate discharge planning in MC's best interests.
B evidenced that she needs time to digest information, and I acknowledge that these hearing rooms are unfamiliar and formal. I will request that a written copy of the reasons for decision be provided to parties for them to read at their convenience.
Principles to be observed
In making my decision I have been mindful of the principles set out in s 4 of the GA Act:
(a)my primary concern is the best interests of MC;[1]
(b)MC, like every other person that comes before the Tribunal in guardianship and administration matters, is presumed to be capable of looking after their own health and safety, of making reasonable judgments in matters relating to their person; of managing their own affairs; and of making reasonable judgments in respect of matters relating to their estate until the contrary is proven to the Tribunal's satisfaction;[2]
(c)a guardianship or administration order may not be made where there is an alternative means of meeting MC's needs that is less restrictive on their freedom of decision and action;[3]
(d)where an order is made it must be in terms that impose the least restrictions on MC's freedom of decision and action; [4] and
(e)I must seek to ascertain as far as possible MC's views and wishes.[5]
What the Tribunal must be satisfied of
[1] GA Act, s 4(2).
[2] GA Act, s 4(3).
[3] GA Act, s 4(4).
[4] GA Act, s 4(6).
[5] GA Act, s 4(7).
The GA Act requires me to be satisfied of certain things in order to appoint a guardian or administrator for a person.
Before appointing a guardian, I must be satisfied that MC is:
(a)incapable of looking after her own health and safety; or
(b)unable to make reasonable judgments in respect of matters relating to her person; or
(c)in need of oversight, care or control in the interests of their own health and safety or for the protection of others;[6] and
(d)I must also be satisfied that MC is in need of a guardian.[7]
[6] GA Act, s 43(1)(b).
[7] GA Act, s 43(1)(c).
If I am satisfied about those matters, then I am required to consider who should be appointed in accordance with the criteria set out in s 44 of the GA Act and what decisions the guardian should be able to make for MC.
Before appointing an administrator for MC, I must be satisfied that MC is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of their estate;[8] and
(b)I must be satisfied that MC is in need of an administrator.[9]
[8] GA Act, s 64(1)(a).
[9] GA Act, s 64(1)(b).
If I am satisfied about those matters, then I am required to consider who should be appointed[10] and what decisions the administrator should be able to make for MC.
[10] GA Act, s 68.
I also must determine how long orders should be in place before they are reviewed by the Tribunal.[11]
Capacity and mental disability
[11] GA Act, s 84(a).
I have read and heard evidence from a considerable number of service providers and doctors involved in MC's care. They have overwhelmingly had concerns about MC's cognitive ability, dating back to 2021, following her first stroke.
This is the evidence from doctors and nurses outside of a hospital setting, who were not aware of a formal dementia diagnosis:
(a)Dr N, a General Practitioner (GP) saw MC 26 times between August 2023 and May 2024 when MC was at a respite care facility (Respite Facility). He was of the view that MC has a progressive mental disability, with cognitive decline noted.
(b)A service provider report from a nurse at the Respite Facility states that MC has a diagnosis of cognitive impairment and that she is vulnerable to exploitation due to her cognitive impairment.
MC's cognitive decline has been noted in three separate ACATs in the past 15 months:
(a)An ACAT conducted at Hospital C in July 2023 noted that MC was observed to be confused on ward by nursing staff. The assessor stated that MC had had a gradual decline in cognition prior to CVA (cerebrovascular accident) in 2021, noting that MC had been referred to the memory clinic under a geriatrician at Hospital C but had not been seen due to not attending appointments. At that point in time, her Mini Mental State Exam gave a result of 19/30, consistent with a moderate cognitive impairment.
(b)An ACAT was conducted in April this year when MC was at the Respite Facility. That assessor noted that MC had herself noticed memory changes with more confusion and less orientation, but that she believed that this could be due to medications. Permanent residential care was approved.
(c)Another ACAT was urgently done in August this year by the Hospital C ACAT team. That ACAT states that MC had a known diagnosis of cognitive impairment. The assessor noted that MC needed significant reminding from her daughter that her parents are deceased.
I also received written reports and letters from consultant doctors recently involved in MC's care, as set out below.
Evidence of Consultant A
Consultant A provided a letter to the Tribunal with the application which refers to MC's neurodegenerative cognitive impairment from mixed dementia (vascular and Alzheimer's pathology), on the background of old strokes and high vascular risk factors. The doctor's evidence is that MC's capacity to decide a discharge destination was bounded due to her limited ability to retain complex information such as the pros and cons of a transitional care versus Residential Aged Care Facility (RACF).
Consultant A also provided a standard medical report which states that MC is incapable of making reasonable decisions with respect to medical treatment and procedures and accommodation. His report states that MC was agreeable to care and placement, however she does not understand the care placement pathway and her complex medical issues.
Consultant A attended the hearing on 14 October and answered questions from me as well as questions put to him by MC's ex-husband, J.
Consultant A's oral evidence was that MC's diagnosis of mixed dementia is a 'probable' diagnosis because a definitive diagnosis requires a biopsy, which can only occur as part of an autopsy.
He also said that MC fulfills the criteria for dementia from a clinical perspective as set out in the Diagnostic and Statistical Manual of Mental Disorders (DSM5) and the International Classification of Diseases (ICD II), the professional codes governing criteria for dementia.
In regards to whether MC's symptoms could be attributed to delirium or strong medication, his evidence was that, whilst delirium facilitates the progress of a neurodegenerative disease, it does not explain it in MC's case. He explained that MC's brain scans confirmed degeneration that is not due to delirium. He also explained that MC has had several small strokes, which would not have been clinically evident (no outward signs of stroke), but the effect of multiple small strokes affects the memory, this is the vascular dementia.
He pointed out that every unplanned admission that MC has had facilitates the progress of her neurodegeneration. He said that his view, and the view of the surgeon involved in MC's care in September 2024 is that, given MC's level of care needs, she is best placed in a RACF which is equipped to meet her needs.
He said that he had discussed moving into a RACF with MC herself before she was discharged against medical advice (I will address the discharge in due course). He said that he had an honest discussion with her, and in her own words 'I only need a safe bed'. His evidence was that MC would be happy to go to a place with some kind of care and medical understanding.
I asked him what MC's care needs would be now, given that she has since suffered another stroke. He said that he had spoken with Consultant B, the consultant neurologist involved in MC's care. She said that MC's care requirements are now much higher than they were a month ago.
Evidence of Consultant B
When MC was readmitted to hospital, I requested an updated medical report from the hospital. Consultant B provided a medical report dated 11 October 2024. Her report refers to MC's diagnosis of vascular dementia and a middle cerebral artery stroke that occurred on 30 September 2024. She attached MC's Montreal Cognitive Assessment conducted before MC's recent stroke, on 9 August 2024. MC's score was 14/30, consistent with moderate cognitive impairment.
Consultant B's opinion is that MC's mental capacity impairment from the stroke is improving, but that her baseline cognitive ability due to dementia is static (not improving). Her witness statement says that MC is unable to make simple or complex financial decisions.
Evidence of B
I have also been provided with submissions about MC's cognitive ability by B.
B's witness statement, filed on 13 October 2024, contained a section entitled 'Clarification on Mother's Cognitive State'. Within that section, B stated:
76I want to clarify that much of the confusion [MC] experiences has been attributed to delirium related to infections rather than to dementia.
77My mother's GP conducted cognitive tests in 2022 and was not overly concerned, agreeing that her confusion was likely due to delirium.
78I have not been informed of any definitive diagnosis of neurodegenerative cognitive impairment or mixed dementia, as suggested in some reports.
I observe that the Hospital A ward notes from the day before MC was discharged state that the acting Clinical Nurse Supervisor, (cognitive care) spent some time discussing the dementia diagnosis with B. The patient notes describe a 45-minute conversation with B in which B said, 'mum can do more for herself than the team thinks, despite the dementia diagnosis'.
B's view that her mother's cognitive impairment is due to reasons other than dementia is consistent with her views set out to the ACAT assessor in July 2023. That assessment notes that B's view was that her mother's cognitive state was attributable to painkillers: '[d]iscussed with [B] and ward social worker - appears client usually alert and orientated but becomes confused after taking her strong painkillers which she had taken prior to ACAT assessment'.
After hearing from Consultant A, I asked B what her thoughts were about her mother's dementia diagnosis. She said that she disagrees with the dementia diagnosis but does agree that her mother has some cognitive impairment.
Findings on mental disability and capacity
I accept the clear and cogent medical evidence that MC does not have capacity to make reasonable decisions with respect to medical treatment decisions, accommodation, services or her finances and I find that she is a person for whom I can make a guardianship order and administration order.
I accept the evidence set out in the Hospital D and Hospital E hospital notes that MC has had a cognitive impairment since her first stroke in 2021.
I acknowledge that many of MC's admissions were in the context of infections that caused delirium and that MC may have been on strong pain medication. However, doctors involved in MC's care first became concerned about her memory following her first stroke in 2021. Since then, multiple doctors have had discussions with MC and B about MC's cognitive ability.
I accept the evidence of Consultant A, a consultant physician, that MC has a mental disability, being mixed dementia (Alzheimer's and vascular mixed pathology). I accept the evidence from Consultant B, a neurologist, that MC has brain injury following the middle cerebral artery stroke on 30 September 2024.
MC's short term memory deficit means she cannot hold information to make decisions, she has such impaired understanding that she cannot make decisions and could not appreciate the risk she was in when she discharged against medical advice on 21 September 2024.
She is unable to perform the complex cognitive task of weighing up the risks and benefits of moving to transitional care, as compared with being discharged home. She is unable to weigh up the complicated medical treatment decision as to whether or not to take her anticoagulants (the complexities of which are set out in more detail below in paragraph [92]).
In terms of her ability to manage her own financial and legal affairs, I accept the evidence from Consultant B and the GP. I find that, because of MC's dementia, she is unable to engage in the cognitive process that culminates in an ability to make a reasonable judgment in respect of financial matters.[12]
[12] FS [2007] WASAT 202; The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161 [45].
Need - Guardianship
Turning then to the matter of need for a guardian. In deciding whether a person is in need of a guardian, I must consider what the person's needs are and whether they can be met by any means less restrictive on the person's freedom of decision and action other than a formal appointment of a guardian.[13]
[13] GA Act, s 4(4).
The evidence before me today sets out that MC needs decisions being made for her about medical treatment, support services and accommodation.
Having regard to the evidence, I am satisfied and find that there are no less restrictive means available by which the kinds of decisions which need to be made in respect of MC can be made, other than by the appointment of a guardian with those functions.
Need for a guardian - lack of engagement with medical providers
Aged Care Services
MC was urgently approved for a level 4 Home Care Package in August 2024. There is no evidence that she has taken any steps to avail herself of the services offered.
I accept that August 2024 was not that long ago and that it may take some time to set up services, however MC had been approved for residential care in April 2024. The ACAT which granted access to those services stated:
The decision has been made by [MC] to remain at [Respite Facility] permanently where she is currently residing under respite. [MC] is settled, her care needs are being met by the facility and she likes the staff and other residents. Therefore, an approval for permanent residential care is needed.
However, MC did not access those supports. Instead, as set out in the service provider report from a nurse at that Respite Facility:
[MC]'s daughter picked her up and taken [sic] her home. Discharged from care 12 June 2024.
The medical notes from MC's last admission to Hospital A notes indicate that the medical advice was to discharge to a transitional care placement (TCP) and that MC was agreeable to TCP. However, Consultant A was of the view that MC did not have the cognitive capacity to make and implement the decision to discharge to TCP. The following day, the social worker met with B, who did not want MC at TCP, so MC remained at the hospital.
I find that MC needs a guardian to make decisions about where MC lives, whether that be temporarily at TCP or permanently in a RACF.
Equipment in home
MC has complex physical needs. She has had falls in the past year and medical records note that her need for equipment in her bathroom and toilet was discussed with her in June 2023.
The discharge summary from Hospital D on 14 June 2023 stated that there was no equipment set up at MC's house: 'nil rails in either toilet, the one in ensuite or the one off the laundry'.
Neither MC nor B arranged for any equipment to be installed. An Occupational Therapist from Hospital A contacted B in August this year and attempted to discuss equipment loan.
B has provided MC with a wheelchair and has given evidence in her witness statement that she is exploring options for additional support, including railings and other home modifications.
I find that MC needs a guardian to make decisions about services and accommodation.
Complex medical decisions
MC has multiple physical comorbidities, and her high risk of stroke must be balanced against her significant side effects on anticoagulants. She requires a decision-maker who is able to weigh up the risks and benefits of treatment.
I find that MC needs a guardian to make decisions about medical treatment.
Suitability
Section 44(1) of the GA Act requires that before appointing a person as a guardian the Tribunal must be satisfied that the person:
…
(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.
Section 44(2) of the GA Act requires the Tribunal, in appointing a guardian, to take into account, as far as possible, the desirability of preserving existing family relationships, the compatibility of the proposed appointee with the proposed represented person and with the administrator (if any), the wishes of the proposed represented person and whether the proposed appointee will be able to perform the functions proposed to be vested in the guardian.
The principles to be observed by the Tribunal when making determinations in relation to guardianship orders are set out in s 4(2) and s 4(3) of the GA Act.
The Tribunal's primary concern is MC's best interests.
Section 44(5) of the GA Act provides that the Tribunal may not appoint the Public Advocate as guardian unless there is no other person who is suitable and willing to act.
Section 51 of the GA Act ensures that a guardian acts in the best interests of MC.
Submissions on suitability of B
I have set out above the reasons why Hospital A made this application and their view that an independent guardian needs to be appointed in MC's best interests.
B has filed a witness statement, together with her resume and two letters from GPs, to support her submission that she understands her mother's care needs and that she would be suitable for appointment as her mother's guardian.
B gave oral evidence at the hearing that:
(a)she has her mother's best interests at heart;
(b)she is coping with her own medical conditions, her son's high care needs as well as caring for her mother; and
(c)she is able to take on board medical advice.
B's witness statement detailed some of her mother's significant health challenges, including bladder-wall cancer, stroke (which she believes may have been contributed to by the stress of the cancer diagnosis), radiation cystitis, recurrent UTIs, osteoarthritis, and a nephrostomy tube. At the hearing, B stated that she has been taught to help her mother with care of her nephrostomy tube.
B also stated that she ensures that her mother sees a GP once every 10 days and that she has advocated for her mother's care by seeking second opinions, exploring alternative treatments and pushing for comprehensive care when she thought it was lacking.
B's witness statement refers to the fact that she discharged her mother against medical advice on 21 September 2024, stating she believed it was in her mother's best interests. Her opinion was that her mother's condition appeared to be deteriorating in the hospital environment:
58.After bringing my mother home, her condition improved significantly.
59.She was subsequently then more mobile, had a better appetite, and was generally more comfortable and content.
A letter was provided from GP, Dr A, on the day of the hearing on 14 October 2024. His letter explains that B has been his patient for over 20 years, and MC has also been his patient the past few years. He is of the view that B is able care for MC and is attentive to her health issues. He considers that B follows medical advice and treatment plans.
Another letter was provided on 14 October 2024, by another GP, Dr K. (I had previously, on B's suggestion, requested that Dr K provide a medical report. He declined on the basis that MC was unable to attend for a cognitive assessment, having been re-admitted to hospital.) However, Dr K provided a letter to the Tribunal. The entirety of the substantive part of the letter is set out below:
[B] is known to me for the last 2 years …
To my observation she has been looking after her mother well with rarely missing appointments …
She is aware of [her] mother['s] medical conditions, … and has an idea of her prognosis.
Dr K's letter does not address a letter that had been sent to him by the Consultant C, geriatrician at Hospital C on 1 October 2024. I have not been able to ascertain whether or not Dr K has read that letter. The letter from Consultant C is referred to in more detail below.
Neither letter from the GPs contains details of how often or how recently they have seen MC and neither letter sets out MC's medical needs.
B's evidence was supported by that of her father, MC's ex-husband, J. He appeared at the hearing on 14 October 2024 in support of his daughter, B as guardian. His oral evidence included:
(a)MC does not want the government intervening in her affairs;
(b)MC would want B to be her guardian;
(c)he is proud of B, her love and devotion to MC and B's son; and
(d)B masks her stress with humour, and her questioning can be taken as unnecessarily adversarial.
Submissions from applicant
As set out in the Background section above, Hospital A made the application to this Tribunal because they were unable to facilitate safe discharge planning with B.
The application stated '[B] will not co-operate with staff, becoming extremely aggressive. B has also avoided contact and meetings'.
Entries from multiple allied health professionals and doctors in the Hospital A medical records indicate that they found B challenging to deal with. Notes from 4 September of a phone call from a doctor to B stated:
•[B] is extremely dismissive and abusive.
•[B] stating that 'we do not know what we are doing' and 'one of those doctors is from a third world country'.
•Explained to [B] that we would like to support her to facilitate a safe discharge.
•[B] hung up on me.
A letter from a social worker, provided with the application, stated that staff at the Respite Facility had advised her that B had become aggressive with them when she called an ambulance.
The St John Ambulance (SJA) notes corroborate the social worker's assertion. The SJA notes, dated 24 December 2023, state that B made a request that MC be admitted to hospital. The ambulance staff declined to transport MC to hospital, based on advice from the nursing staff at the Respite Facility. The ambulance notes indicate that MC was unsure why an ambulance had been called.
The SJA notes record that when B was informed that MC would not be taken to hospital:
The daughter immediately became hostile towards SJA making statements to the effect:
'You're not doing your job'
'You'll regret this'
'She had an operation and needs to be admitted to hospital'
'You'll be dragged over the coals for this'
'Your a bunch of racists'
'You're giving me radio silence'.
Daughter was immediately identified as a threat to the safety of officers and nursing facility. The crew continued to attempt to ask the daughter what her concerns were for her mother and ask her to engage in a civil conversation so we could better, understand and seek the best possible treatment. Daughter refused engage in conversation, started displaying aggressive hostile body language, got her phone and started making a phone call. SJA retreated to the van and informed CSPSOC of situation.
The Hospital A ward notes from General Surgery on 21 September 2024 indicate that a Code Black, or security risk, was called when B discharged her mother against medical advice.
B's lawyer made submissions in relation to B's confrontational approach with medical staff in a hospital context. He requested that the Tribunal understand that she finds hospital environments stressful and that many people in her position would act with aggression.
Risks taken in discharging against medical advice
MC has multiple physical conditions, including pancreatitis, pyelonephritis, hypertension, haematuria (blood in urine), chronic radiation cystitis, atrial fibrillation (for which she had previously been prescribed apixaban, due to her previous stroke) as well as a nephrostomy tube.
MC's last admission to hospital was precipitated by a fall at her home. The SJA ambulance notes indicate that MC had fallen at approximately midnight and the ambulance was called at 5.47 am. MC was a known falls risk, discharge summaries and emergency department notifications from Hospital A, Hospital D and Hospital E all record that MC was flagged for being at risk of a fall.
I accept the applicant's submission that B refused to engage with Hospital A staff to enable safe discharge planning, but instead discharged her mother against medical advice, without a safe discharge plan.
B had been warned by several specialists specifically regarding MC's risk of having another stroke. This was in the context of MC's 2021 mid-cerebral artery stroke, as well as her diagnosis of atrial fibrillation and side effects from anticoagulants, being haematuria and falls. The evidence before me is:
(a)In discharge summary dated 4 August 2023, the gerontologist at Hospital C stated, '[B] is aware of the increased risks associated with withholding apixaban in the context of her atrial fibrillation and previous CVA (Cerebrovascular Accident) including stroke'.
(b)In October 2023, the consultant at Hospital A warned MC's family of the risk of stroke, to be weighed against the risk of haematuria, the notes providing 'apixban held'.
(c)In July 2024, the discharge summary from Hospital B states that discussions were held with the family regarding the side effects of anticoagulation (the side effect noted was haematuria), to be balanced against the risk of a stroke. Hospital A medical records state that MC's medication for atrial fibrillation was ceased by a geriatrician in July 2024 due to the risk of a fall.
(d)In September 2024, in his letter to this Tribunal provided to B's lawyer, the consultant physician at Hospital A referred to a high vascular risk factors on the background of old ischaemic strokes.
Hospital staff were of the view that MC required significant care to attend to her multiple physical care needs and had recommended that MC be discharged to transitional care.
Notwithstanding these warnings, B discharged her mother against medical advice on 21 September 2024.
On 30 September 2024, at about 4.30 pm according to Hospital B notes and SJA notes, B noted that her mother was not responding to her normally. The SJA notes state that B thought perhaps MC was tired and needed a nap, B then noticed a facial droop and right sided weakness and called an ambulance. The ambulance records note that the call was made at 8.20 pm. This is a 4-hour delay between the time MC was not responding normally and seeking help.
MC was initially taken to the Hospital B Emergency Department and was transferred to Hospital A on 4 October 2024. The discharge notes record that MC will need a decision regarding anticoagulation in the long term. This is an example of a complex medical decision that MC's guardian will have to make.
Additional medical evidence - letter 1 October 2024
After the 14 October hearing, on 18 October 2024, an additional letter was faxed to the Tribunal from Consultant C, a consultant at the Memory Clinic at Hospital C.
The letter was dated 1 October 2024 and was addressed to the GP, Dr K. The letter sets out Consultant C's significant concerns for MC as a vulnerable individual and her views that B is not acting in her mother's best interests:
[MC] was under my care earlier this year largely for social reasons. She has had multiple presentations to hospital in the last two and a half years. Mostly this is due to her nephrostomy tube and also worsening cognitive performance. This culminated in admission to an aged care facility for respite in August of 2023 following hospital admission at [Hospital D]. The context of this was that her daughter was unwell with her own medical problems. [MC] has not spent any durable time home since then. The respite facility was extremely supportive and spent some considerable time seeking an ACAT for permanent care and securing a permanent bed for her. However, once this had all been organised, her daughter insisted that patient be discharged go home. She has then had subsequent re-presentations to [Hospital A].
…
I am very concerned that [MC's] daughter, [B] is actively preventing her mother from accessing appropriate care in a permanent facility. I am concerned that the reason for this is secondary gain regarding the property owned by [MC]. For this reason, I believe an independent surrogate decision maker needs to be appointed via the State Administrative Tribunal.
As the letter is relevant to B's suitability as guardian, I have accepted it as evidence. B's lawyer was sent a copy of the letter. He informed the Tribunal that he is no longer acting for B.
The Tribunal made a redacted copy of the letter available to B on 21 October 2024 and gave her the opportunity to be heard at the hearing on 22 October 2024. B declined, stating that she relies upon her witness statement already filed.
Public Advocate's submissions
The Public Advocate's submission was that there had been a breakdown of communication between professionals and B. The Public Advocate submitted that B is a suitable guardian for her mother now that B has acknowledged that her mother's capacity has declined.
The Public Advocate also submitted that B is suitable as administrator, B having managed her mother's finances for some time and there was nothing to suggest that B had acted inappropriately with finances.
Findings - Suitability of B as guardian
The Tribunal may only appoint the Public Advocate if there is no other person willing or suitable to act.[14]
[14] GA Act, s 44(5).
B has made it clear that she is willing, the question is whether she is suitable.
B acknowledged in her witness statement that she does not always follow advice. She discharged her mother against medical advice on 21 September as she did not feel it was correct advice. The Tribunal might have been reassured if B had indicated that she had sought a second opinion, but for her to ignore medical advice because she did not agree with it is not considered to be in her mother's best interests.[15]
[15] QW [2007] WASAT 23 [35].
I understand that B has had an incredibly difficult year with her own health challenges, and I understand that she would like to be appointed as her mother's guardian. However, I have decided not to appoint B as guardian.
B has acknowledged that her mother has some sort of cognitive impairment. However, B also told me that her mother's cognitive decline is attributable to delirium related to infections or strong medication, rather than dementia, and that she is respecting MC's wishes regarding care and living arrangements.
MC's guardian will need to act according to their opinion of MC's best interests. I note that the obligation on a guardian to act according to their opinion of the best interest of the represented person, but that is not to be informed solely by regard to their own subjective views. The determination of what is in the represented person's best interests is informed, but not dictated by the views and wishes of that person.[16]
[16] ED [2020] WASAT 34 [69]; GC and PC [2014] WASAT 10 [27].
In MC's case, the medical advice is that MC is not capable of making decisions regarding her living arrangement and that she needs significantly more care than she has been getting at home. I understand that B does not accept the medical advice that her mother has an ongoing, enduring cognitive impairment (being dementia) but because she does not accept the evidence, she has not yet accepted the services and medical treatments required and this has put MC's health and safety at risk.
I accept that B genuinely believes that she is a strong advocate for her mother and that she perceives it to be in her mother's best interest for her mother to remain at home. Unfortunately, her enthusiastic and zealous protection of what she sees as her mother's best interests, clouds her judgment to the point that she is unable to accept that MC is significantly compromised by her progressive dementia and multiple physical comorbidities and is in clear need of extensive care.[17]
[17] RH [2009] WASAT 159 [18].
The very fact that MC has had so many unplanned hospital admissions is a clear indicator that she needs considerably more care than she can receive by one person at home, even a person who is strongly dedicated to helping her. I observe that, since B moved into MC's house to act as her carer in August 2024, MC has spent the significant majority of her time in hospital:
(a)4 to 13 August - Hospital A;
(b)29 August - presented to Hospital E (did not wait at ED);
(c)30 August to 21 September - Hospital A; and
(d)30 September to present - Hospital B/Hospital A.
Whilst I accept B's submissions that she will act in what she considers her mother's best interests, I am not satisfied that she will be able to make objective and reasonable judgments about where MC's best interests lie in relation to her accommodation needs, in relation to the services to which she should have access or medical treatment decisions.[18]
[18] MH [2022] WASAT 74 [172] - [177].
This finding is based upon:
(a)B's refusal to acknowledge the ongoing and enduring nature of MC's cognitive disabilities (as addressed above at paragraphs [107] to [110]) and incomplete appreciation of MC's complex physical care needs;
(b)B's previous actions not acting in MC's best interests; and
(c)B's confrontational approach with hospital staff and refusal to engage with them.
Incomplete appreciation of the extent of MC's physical care needs
In her witness statement and in oral evidence, B demonstrated, and I accept, that she is aware of her mother's care needs in relation to the nephrostomy tube. However, B has not demonstrated an understanding of the complexities involved in managing MC's atrial fibrillation, or the realised risk of stroke complicated by MC's side effects on anticoagulants.
B has not given any acknowledgement of the multiple unplanned hospital admissions her mother has had in the past 18 months. Nor has she demonstrated any understanding of the negative impact that each unplanned admission has on MC's cognitive ability (Consultant A's evidence on this is above at paragraph [32]).
Previous actions - not acting in MC's best interests
B discharged her mother against medical advice, causing a Code Black at Hospital A on 21 September 2024.
This discharge was despite the fact that doctors were worried about MC's risks of another unplanned admission. B continues to believe that it was in her mother's best interests to take her home. She maintains this belief notwithstanding that the risks that the doctors identified (that MC may have another stroke and that MC may have another unplanned hospital admission) have eventuated. I accept the doctor's evidence and I find that the discharge against medical advice was not in MC's best interests.
Particularly concerning is that B's position in her witness statement, together with oral evidence from B and her father, was that the decision to discharge against medical advice was justified. B pointed out to me that her mother had been more mobile and was much happier at home.
I informed B that discharging against medical advice was something that I needed to consider in deciding her suitability to be guardian. B replied that she regretted doing it. However, considering B's witness statement filed on 13 October 2024 and her comments on 14 October 2024 that her mother was better off at home, I am not satisfied that B regrets acting against medical advice, rather that she regrets acting in a way that would call into question her suitability to be MC's guardian.
Confrontational approach
I accept Mr Graham's submission and the letters provided from Dr K and Dr A that B has had a more positive relationship with other doctors involved in her mother's care outside a hospital setting.
However, MC's reality is that she has spent more time at hospital than at home in recent months. I accept the submissions from the applicant that B's confrontational approach to staff in September this year complicated her mother's discharge last month. This was not in MC's best interests.
Cannot be in a position of conflict
I have already determined that B is not suitable as guardian for MC for the reasons set out above. However, given that staff from more than one hospital have gone to the effort of providing information to the Tribunal in relation to a suspected conflict of interest, I have set out the evidence on this issue below.
The Tribunal may not appoint a guardian who is in a position where her interests conflict or may conflict with the interests of the proposed represented person.[19]
[19] GA Act, s 44(1)(c).
Several sources have submitted that B may have a conflict of interest in being MC's guardian:
(a)The application stated, '[B] is hesitant to act in her mother's best interests or afford her the level of care she requires, because of a financial conflict of interest'.
(b)The consultant at Hospital C's evidence (outlined above) is that B has a financial incentive to act against her mother's best interest.
(c)The medical records, ward notes at Hospital A mention that B receives a carer's allowance for being MC's fulltime carer.
(d)A social worker at Hospital A informed the Tribunal that the Respite Facility believed that B had discharged MC from permanent care due to financial reasons, although they were aware that MC has savings and owns her own home.
The clinical nurse manager at the Respite Facility provided a report to the Tribunal. This report did not set out any concerns regarding B having any financial incentive to discharge her mother.
It is accepted by all parties that B and her son moved into MC's house in August 2024 and that B receives additional carer's allowance for looking after her mother. No party suggested that B and her son are paying rent.
B's witness statement says that she has always acted in MC's best interests and that she has been transparent in the management of MC's affairs.
B's oral evidence was that she has no financial benefit from having moved into MC's home, rather she moved in with MC to look after her. B stated that:
(a)B owns her own property, which is not currently being rented out, so that B does not receive a financial benefit for having moved in with MC; and
(b)B's carer's payment for MC is negligible - only $100 per fortnight on top of what she already receives for her son.
I accept that B moved in with MC to look after her. However, since B moved in with MC in August 2024, MC has not spent more than two weeks at home, her physical health being such that she has had two lengthy unplanned hospital admissions.
It is not necessary for me to make a finding on whether or not B has a conflict of interest in being MC's guardian, as I have already determined that B is not a suitable guardian for MC.
What decision-making functions does the guardian need to perform?
On the evidence given by the staff at the applicant hospital, I am satisfied that MC needs a decision-maker to make decisions about:
(a)where she lives;
(b)services to support her as she is ready for discharge and a high falls risk; and
(c)consent to medical treatment as she is unable to make those decisions herself.
Need for an administrator
As to whether there is a need for an administrator, I have considered whether there is a less restrictive means of meeting MC's financial management needs.
The evidence before me today is that due to MC's inability to make reasonable judgments about her own financial affairs, she requires assistance to deal with her estate, including to make financial decisions; including decisions of the simplest kind.
The application and various reports before the Tribunal state that MC is at risk of exploitation or financial abuse due to her lack of cognitive ability.
I am satisfied on the evidence that there is no less restrictive alternative to meet MC's needs because I am satisfied that MC requires a substitute decision-maker to be appointed in relation to financial matters. Given the medical evidence that MC requires care in a RACF, the facility will require someone with authority to make financial decisions for MC.
The current informal supports in place for MC are insufficient. Whilst MC has been assisted by B in an informal manner with the management of her finances, bill payments and money management up until now, I am not satisfied that B will be able to act collaboratively with the independent guardian.
I find that there is need for an administrator.
Scope of Administration Order
I have considered the extent of MC's disability, the nature of her estate and the financial and legal functions that need to be conducted for her. I am satisfied that the least restrictive order is a plenary administration order as MC is not able to make decisions about any aspect of her estate.
Public Trustee appointed
Having determined that an administrator is necessary, I am satisfied that it must be the Office of the Public Trustee (Public Trustee).
There are two reasons for this: firstly, given the coherent medical evidence that MC requires significantly more services to support her, likely in a RACF, a decision by the guardian will likely have financial implications.
Secondly, I need to be confident that the person who manages MC's income and funds is compatible with the guardian.[20]
[20] GA Act, s 68(3)(a); TL v Office of the Public Advocate [2020] WASC 455 [44]; MM [2016] WASAT 62 [110].
For the reasons already given above regarding the guardianship application, I am not satisfied that B would be compatible with the Public Advocate's appointment, given the significant risk that she will disagree with a decision of the guardian.
Views and wishes
The GA Act requires the Tribunal to 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.
In making this decision, I have not been able to ascertain the wishes of MC given her recent stroke.
B and J have evidenced that MC has stated her preference to remain living at home rather than a RACF. Conversely, several service providers and doctors evidenced that MC was agreeable to living in a RACF.
I accept that MC may have told B that she wishes to remain at home and that she may have told service providers that she is amenable to move into a RACF. However, all the evidence on the file suggests that MC is an agreeable person who does not wish to cause any conflict. I have not been able to make any findings on her views and wishes.
Gifting
I will make an allowance for gifting up to an amount of $500 per year.
Voting
Consultant A said in his report that he is unsure as to whether MC is capable of making judgments for the purpose of complying with the provisions of the Electoral Act 1907 (WA) relating to compulsory voting.
I make no order as to voting.
Duration
The Tribunal is required to nominate a period of time by which a review of both, the guardianship and the administration orders must be reviewed. The maximum period of time allowed under the GA Act is 5 years.
I am satisfied, and I find, that given MC has been diagnosed with dementia, a progressive illness, a 5 year order is appropriate.
Formal declarations and orders
The Tribunal makes the following orders:
1.The Tribunal declares that the represented person, [MC] is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b)in need of an administrator of her estate.
(c)incapable of looking after her own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person;
(e)in need of oversight, care or control in the interests of her own health and safety; and
(f)in need of a guardian.
Administration
2.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
3.The administrator is authorised to expend up to a total amount of $500.00 per annum on gifts on behalf of the represented person.
4.The administration order is to be reviewed by 22 October 2029.
Guardianship
5.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(d)to determine the services to which the represented person should have access.
6.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
7.The guardianship order is to be reviewed by 22 October 2029.
8.A written copy of the oral reasons for decision delivered on 22 October 2024 be provided to parties.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Cobbett, MEMBER
1 NOVEMBER 2024
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