MD
[2006] WASAT 186
•5 JULY 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: MD [2006] WASAT 186
MEMBER: MS F CHILD (MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)
MS J STANTON (SENIOR SESSIONAL MEMBER)
HEARD: 27 MARCH 2006
4 APRIL 2006
11 APRIL 2006
DELIVERED : 5 JULY 2006
FILE NO/S: GAA 2171 of 2005
BETWEEN: MD
Represented Person
Catchwords:
Guardianship and administration – Represented person severely physically disabled with mild intellectual disability – Allegations of neglect and abuse – Wishes of the represented person – Need for independent guardian to act on behalf of the represented person to decide where he should live – Need for independent administrator
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 43, s 43(1)(b), s 44(5), s 64, s 97(1)(b)(ii)
State Administrative Tribunal Act 2004 (WA), s 78
Result:
Appointment of the Public Advocate as limited guardian
Appointment of the Public Trustee as plenary administrator
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
On review of a guardianship order made three months prior, the State Administrative Tribunal reappointed the Public Advocate as guardian for a young man with multiple health problems and severe physical disabilities and who suffered from a mild intellectual disability and acquired brain injury.
The Tribunal considered that he was vulnerable and unable to decide personal and financial matters for himself in his best interests.
The Tribunal appointed the Public Trustee as his plenary administrator to manage his pension income so that it was applied to meet his day‑to‑day needs including payment for his accommodation.
The appointments were made despite opposition from his parents and sister who argued that his care should be provided at home and that they should continue to manage his pension income informally.
When the order was originally made the Tribunal heard that the health professionals involved in the care of the young man had considered that his complex care needs had not been met when he was living with his parents. It was submitted that the level of care provided in his home had contributed to deterioration in his health including poor control of his insulin dependent diabetes, and the breakdown in his skin due to the poor management of his double incontinence.
The Tribunal was reviewing an earlier decision by the Tribunal to appoint the Public Advocate as plenary guardian for a period of three months to determine all issues in relation to the young man's care and living arrangements. That order had been made in the context of allegations of physical, sexual and emotional abuse of the young man, and neglect of his health care which had led to a breakdown in his skin. The young man had, at that time, expressed the strong desire to leave home. At the time of the review hearing, the young man stated he wished to return to live at home and denied or would not comment on his earlier allegations.
Having considered all of the evidence of the health professionals, the parents and the young man himself, the Tribunal considered that while the young man was now expressing a wish to return home, he needed an independent guardian to determine where he should live. The Tribunal appointed the Public Advocate to make decisions as to where he was to live and to consent to health care and services and to determine the contact, if any, that he should have with others.
The Public Trustee was appointed plenary administrator to administer his pension income because the Tribunal accepted the view of the applicant, a social worker from the Disability Services Commission, that the young man's income had been merged into the household budget and it was not consistently being applied to meet his needs. This was considered together with the impracticality of the parents continuing to manage his pension when they were strongly opposed to him living outside their home and their lack of cooperation with the provision of financial support for him in the months since the order had been made. The Tribunal considered that given their stated position they were likely not to co‑operate with the service provider in the provision of financial support for their son from his pension and in particular not to pay for his accommodation and other needs and so appointed an independent administrator to manage his pension.
Reasons for decision
These reasons relate to a review of a guardianship order made for MD (the represented person) on 13 December 2005 (the original hearing) by which the Public Advocate was appointed plenary guardian for a period of three months. An application for the appointment of an administrator which had been part heard on that day was adjourned for investigation by the Office of the Public Advocate regarding the need for the appointment of an administrator.
The review of the guardianship order and the hearing of the administration application were conducted on 28 March 2006, 4 April 2006 and 11 April 2006 by the Tribunal constituted by three members. The composition of the Tribunal changed after the hearing on 28 March 2006 when Dr Alan McCutcheon replaced a member who sat on that day. The hearing on 28 March 2006 dealt primarily with access to reports before the Tribunal by members of the family and orders were subsequently made in that regard. The substantive hearing of the review of the guardianship order and the adjourned application for administration proceeded on 4 April 2006.
Background
The first application for the appointment of a guardian and an administrator for the represented person was made to the then Guardianship and Administration Board (the Board) in December 1998 by the current applicant, Ms Sue Rutherford, a social worker from the Disability Services Commission (DSC). That application was later withdrawn by the applicant after mediation by the Office of the Public Advocate.
The functions of the Board were absorbed by the State Administrative Tribunal in January 2005 and the files of the former Board are now in the possession of the Tribunal.
The applicant made a further application to the Tribunal in September 2004 and then later withdrew it. The applicant submitted a further application for the appointment of a guardian and an administrator in December 2005 and sought an urgent hearing of the application. A letter from the applicant to the Tribunal dated 12 December 2005 opposed an adjournment of the hearing sought by the father "on the basis that the alleged abuse issues are too serious".
At the hearing on 13 December 2005 the Public Advocate was appointed plenary guardian for a period of three months. It had been submitted and the Tribunal accepted that an order was required to allow full investigation of the issues raised by all the parties. The application for the appointment of an administrator was adjourned.
Following her appointment, the guardian arranged that the represented person leave the family home the day after the hearing. The parents were advised that this had occurred after he had been removed. At the time of the review hearing the represented person was living in DSC accommodation.
At the first review hearing on 28 March 2006, it became clear that all the written material which had been before the Tribunal at the first hearing had not been seen by the members of the family of the represented person, including his parents and sister. The written material before the Tribunal at that time of the first hearing included: the application form with a covering letter referring to "several disclosures regarding abuse by his father", dated 7 December 2005, a report from the applicant setting out the range of issues of concern including poor management of the represented person's continence needs and his diabetes, a report from Ms Anne Toland, [a] clinical nurse from Silver Chain, dated 23 September 2005, detailing the concerns regarding the management of the incontinence experienced by the represented person, documents entitled "Silver Chain Progress notes" for the period 18 May 2005 to 29 May 2005 which disclose information about an alleged physical assault on the represented person by his father and a report of that to his mother, and a report to the applicant dated 6 December 2005 from Leonie Walker, accommodation advocate for the organisation People With Disabilities, which records the disclosure by the represented person of a sexual assault on the represented person by his father.
The information that the represented person was said to have disclosed, was a sexual assault which was referred to in the report of Ms Walker to the applicant and was apparently not known to the family.
The Tribunal adjourned the hearing on 28 March 2006 and ordered that the parents and sister have access to all of the submissions made to the Tribunal for the purposes of the original applications and the review of the guardianship order, with the assistance of an interpreter if they wished.
The mother and sister of the represented person inspected the reports before the Tribunal prior to the hearing on 4 April 2006. The reports included those listed above with the addition of the following: a report of the Public Advocate, dated 3 March 2006, which was received by the Tribunal on 27 March 2006, a report of Ms Judith Evans, clinical psychologist, dated 20 March 2006, a copy of the Health Care Plan referred to in Ms Toland's report dated July 2005, and a report from Dr SK Gan, endocrinologist dated 21 February 2006.
At the hearing on 4 April 2006, two further reports were submitted by the Public Advocate from Dr Clozza, general practitioner, and Dr Pavlos. Both these reports were provided to the parents. The parents also submitted a letter from a staff member of their Member of Parliament which enclosed an "Action Plan" developed at a meeting held in October 2005 attended by the represented person, his parents, a Ministerial adviser to the Minister for Disability Services, the Member's electorate officers, the applicant and two other staff of the DSC. The mother of the represented person also submitted a further document regarding the physiotherapy needs of the represented person on 5 April 2006 and a submission regarding the management of his pension, dated 11 April 2006, which referred to her refusal to give the bank account details to the investigator from the Office of the Public Advocate. The letter refers to the "abduction" of the represented person "during an outing" and "due to the manner" in which this had occurred "there was no packing up of [the represented person's] possessions and therefore items that [the represented person] needs are being re‑supplied, even though there is ample stock at home, including his medication which was left with us".
The hearing of the review of the guardianship order and the application for the appointment of an administrator proceeded on 4 April 2006. At the conclusion of that hearing, the mother of the represented person agreed she would submit copies of the bank statements for the bank account of the represented person to the Tribunal. The Tribunal adjourned and advised that it would reconvene to deliver a decision in both matters on 11 April 2006.
Legislation
On review and in dealing with any new application, the Tribunal must be satisfied that the represented person is a person for whom orders for guardianship and administration can be made.
Before a guardian can be appointed or an appointment confirmed, the Tribunal must be satisfied that the represented person has attained the age of 18 years, is incapable of looking after his own health and safety, is unable to make reasonable judgments in respect of matters relating to his person or is in need of oversight care or control in the interests of his own health and safety or for the protection of others and is in need of a guardian.
Before an administration order may be made, the Tribunal must be satisfied that a person is unable, by reason of mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate and is in need of an administration order.
Section 43 and s 64 of the GA Act for the appointment of a guardian and administrator respectively, are expressly subject to s 4 of the GA Act which provides:
"(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in subsection (2).
(2)(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.
(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."
In determining the appropriate appointment of a guardian, s 44(5) of the GA Act is relevant in that unless she is appointed to act jointly with another person or persons, the Public Advocate shall not be appointed as a guardian unless there is no other person suitable or willing to act.
Evidence and findings
Capacity
When the order was originally made, the Tribunal considered reports before it regarding the capacity of the represented person to manage his personal and financial affairs first submitted to the Board in 1998. A report, dated 16 December 1998, from Dr Chris Pavlos, general practitioner, refers to a severe cognitive impairment suffered by the represented person. A report from Dr Kim Fong, who is a specialist in rehabilitation medicine, dated 15 December 1998 states that the represented underwent a right hemispherectomy for epilepsy control in 1996 and suffered a complication with an injury and "structural damage to the remaining left cerebral hemisphere [of his brain]". At the time of his report in December 1998, Dr Fong considered that the represented person would "remain severely disabled both physically and cognitively," and that he would be "unable to make any reasonable, independent decisions re[garding] his living situation" and was "totally incapable of conducting any of his own financial affairs". Dr Fong describes the represented person as having a "poor level of insight into his own disabilities".
More contemporary evidence regarding the represented person was provided to the Tribunal by Ms Judith Evans, a clinical psychologist from the DSC. Her report, dated 20 March 2006, refers to an assessment based on recent direct contact with the represented person and a review of reports from DSC Accommodation Services. The report states that the represented person has been a client of the DSC from the age of 16 years and that he has a diagnosis of Rasmussen's Syndrome following a head injury at age 10. The report describes Rasmussen's Syndrome as "a neurological disorder of unknown cause characterised by severe epilepsy, hemiplegia, dementia and inflammation of the brain with progressive functional and structural destruction of a single cerebral hemisphere". The report notes that the represented person had been assessed in 1994 and found to have moderate impairment in his intellectual functioning and mild impairment in his adaptive behaviour.
The report from Ms Evans was produced at the request of the Public Advocate for the purposes of the review hearing, but did not specifically address the question of the capacity of the represented person but primarily his susceptibility to be influenced by others. Ms Evans states while the represented person has a mild intellectual disability that his language development and comprehension are well developed but she considers his decision making is "superficial".
Ms Evans reports that she did not find on testing that the represented person was more suggestible than others. She did, however, state in her report that she considered that he "was under emotional pressure". She based this on his unwillingness to answer questions about his family and what was reported to her by staff about the lack of contact from his family.
Ms Evans' evidence by telephone to the hearing on 4 April 2006 is that the represented person does not have an understanding or appreciation of his disabilities, his diabetes or his physical limitations.
Family members do not accept that the represented person has a cognitive impairment. The parents consider that the represented person is "smarter than people think" and that his disabilities are physical but that he can make personal care decisions and "knows what is happening and he can tell the family what he wants". They consider that Ms Evans' two contacts with the represented person for the purposes of the assessment are not sufficient to form a judgment about his capacity to express his wishes. They did not consider that he could manage his own money but could express how he wanted to spend his money. The investigator from the Office of the Public Advocate supported this, stating that it appeared that the family did manage the represented person's money as they considered that he would spend any amount of money given to him and needed support with managing his spending. The investigator considered the historical reports indicated that the represented person was not capable of managing his money.
While the Tribunal accepts the view of the family that the represented person has made significant improvements over the 10 years since his surgery, we consider that he remains a person for whom a guardianship order may be made in that all paragraphs in s 43(1)(b) of the GA Act apply to him.
The Tribunal also considers that he is a person for whom an administration order may be made as he is unable by reason of his intellectual disability to manage his pension income and apparently has never done so.
These findings are based on the professional evidence before us of an assessment of a mild impairment in his intellectual functioning and the provision of services to him by the DSC because of that intellectual disability which predates the brain surgery performed in 1996. It is likely also, that given the extent of the surgery described by Dr Fong and subsequent brain injury that followed, the represented person suffers some residual cognitive impairment from that acquired brain injury along with the severe physical disabilities he now suffers.
Need for orders
Before an order can be made or confirmed on review, the Tribunal must be satisfied that there is a need for such an order.
In respect of the review of the guardianship order and the application for administration, the Tribunal considered the earlier allegations and issues that were before the Tribunal when the guardianship order was originally made and the current circumstances of the represented person.
Guardianship
The original order was made in the context of allegations that the represented person's medical and care needs were not being met, that there had been a breakdown in the relationship between DSC and the family, that there had been problems in retaining carers, and the represented person had made allegations of abuse by his father and had expressed a longstanding wish to leave home.
The medical issues identified by the applicant included the management of the represented person's double incontinence and his diabetes as well as other issues. The applicant had submitted that the "family refuse to manage his diabetes in an appropriate way". She stated that the mother had refused the assistance of a dietician on the basis that she is "not cooking a separate meal for him". The continence issues of the represented person are set out in the application and the applicant submitted that "[c]arers are attempting to institute routine toileting and the use of uridomes but this is consistently sabotaged by the parents [sic] refusal to change the bags regularly, or, to toilet [the represented person] when carers are unavailable". The application notes that a referral was made to Silver Chain for the development of a care plan.
The application referred to a search by DSC for a suitable out of home option over a period of years because it was believed to be the long held wish of the represented person to move and there was considered to be a "problematic home environment". The applicant submits that the family opposed the move and were not agreeable to "handing over the pension".
The issues of continence management, proposals regarding the carers and a "trial of independent accommodation" and "application for an independent guardian" are all documented in the "Action Plan", dated 17 October 2005, submitted by the parents of the represented person to the Tribunal.
Allegation of sexual abuse
One of the documents before the Tribunal is a report, dated 6 December 2005, by Ms Leonie Walker of the organisation, People With Disabilities, reporting to the applicant on her interview with the represented person. This report was not dealt with at the original hearing. The report is of a private interview she conducted with the represented person and a carer present without the knowledge of his family.
Her involvement as an advocate for the represented person had been requested by both DSC and the mother in the months prior to the original hearing. Her report makes the following comments:
"[The represented person] mentioned that his father had weapons. He also referred to his father as a 'poofter' and actually used the word 'rape' in terms of his father and himself. I asked [the represented person] the direct question as to whether his father had in fact raped him. He did not answer this question but continued to refer to his father as a 'poofter'."
When questioned during the hearing, Ms Walker stated that she was reporting what the represented person had said to her and what was said had come as a response to her question to him as to why he wanted to move out of home, and what was making him unhappy at home. She confirmed that the represented person had stated in the strongest terms that he wished to move out of home and asked that it be soon.
It must be said that what was in her report to the applicant and her evidence in the hearing appears not to be a verbatim report of the interview conducted with the represented person. When questioned, Ms Walker stated that it was the represented person who had first used the word "rape".
Although the sister conceded (T page 206) that the represented person may have said these words we accept her view that when dealing with such a serious allegation with potentially devastating implications for both the represented person and his father, great care should be taken to record the questions asked and the answers given. In this case, it may be that the use of an interpreter would have assisted in the recording of the exact words used by the represented person.
Having said that we accept that the word "rape" was used first by the represented person in his interview with Ms Walker, but all the details of the interview and the exact context in which this word was used and the meaning given to it by the represented person cannot be known with any real certainty.
During the hearing where this allegation was raised, the represented person stated that the allegation was "not true".
The parents had not been told of the allegation of sexual abuse prior to the review hearing on 28 March 2006. Since he became aware of it in late March or early April 2006, when the family had access to the report, the father has denied the allegation.
The disclosure of sexual abuse was apparently made by the represented person on 30 November 2005 to Ms Walker. It appears to be first reported to the applicant in an unsigned report from Ms Walker, dated 6 December 2005. There may have been earlier verbal notification, but the Tribunal was not advised of this. The applicant advises that no police complaint was made despite the policy of the DSC to report such allegations to the police. She stated in the hearing that the matter was discussed with the police on a "no names basis".
The Public Advocate was appointed plenary guardian on 13 December 2005. The guardian advises that no police complaint or referral to the Sexual Assault Referral Centre was made by the guardian despite that being the general policy followed by the Public Advocate.
The guardian asked that a referral be made for protective behaviours training for the represented person and conducted an investigation of her own into the matter. The guardian states that no further disclosures of abuse have been made by the represented person.
At the specific request of the Tribunal during the hearing, the Public Advocate produced two medical reports which relate to this investigation. The two reports put before the Tribunal state that there is no clinical evidence of either physical or sexual abuse of the represented person.
It should be noted that the GA Act refers to the role of the Public Advocate at s 97(1)(b)(ii) to present to the Tribunal, Judge or Court any information in her possession that is relevant to the hearing. The reports of any investigation of such an allegation must be considered as relevant to the review of the guardianship order in place for the represented person.
During the review hearing, members of the family state the represented person uses the word "poofter" as a term of criticism or verbal abuse to many people, including his carers and members of the family.
We accept that the represented person uses the word "poofter" as a general term of abuse and that it may not have a sexual connotation for him.
There has been no criminal investigation of the allegation.
There is, according to the available medical reports submitted by the Public Advocate, no clinical findings consistent with the represented person having been raped
The Public Advocate confirms that supervised contact between the father and the represented person has not been required, and we infer from this that the Public Advocate considers that there is no current risk of sexual (or other forms of) abuse from the father and we consider this is based on an assessment of the nature of the purported disclosure.
The lack of formal investigation of this allegation means that it remains unresolved.
Although we make the finding that the words "rape" and "poofter" were used by the represented person in relation to his father in his interview with Ms Walker we make no findings regarding the allegation itself.
Allegation of physical abuse
An allegation of physical abuse by the represented person is referred to in the progress notes, dated 18 November 2005 at 2200 hours, which notes the following:
"[N]o carer this morning no shower. [the represented person]'s groins are very red with broken skin, penis and scrotum included, a hard plastic canueen cover was left in [the represented person]'s nappy all day Thursday, smaller pads not being used in the AM only nappies. [the represented person] very upset about his father's behaviour this morning, he slapped [the represented person] with force across the head and face which resulted in [the represented person] crying, client has notified his mother while I was present."
The writer of this entry did not give direct evidence in the hearing but we consider we can rely on these notes as a record of the direct care services provided to the represented person and the observations of the carers. What is ambiguous in the report is whether the carer observed the alleged assault or whether it was reported to her by the represented person.
The father denies the allegation that he hit the represented person. He states in the hearing that he raised his hand to the represented person but then "walked away". The mother denies ever having been advised of such an incident. The integrated progress notes in which this entry and others were made by carers were kept at home with the represented person during the period up until he went into care in December 2005.
We accept the recording made by the carer and find this to mean that at the least that the represented person alleged that his father had hit him and that this was reported to his mother.
Diabetes management
In the original application for the appointment of a guardian, the applicant submitted that the family have not managed insulin dependent diabetes of the represented person with the result that his diabetes is poorly controlled. She reported at the review hearing that since his placement in DSC accommodation his diabetes management was better controlled.
During the hearing, the parents and sister of the represented person said that concern about mismanagement of the diabetes had not been raised with them at a meeting to address the care issues which had been held at their local Member of Parliament's office on 17 October 2005. The applicant responded that the concern about mismanagement of the represented person's diabetes had been a long‑standing concern of health professionals and would have been known by the family.
The mother of the represented person states that the paid carers gave the represented person sweet food during the day because he wanted it. The mother denies she has been offered help of a dietician by DSC, but states she has been cooking all her married life, and all the family are well fed and healthy. The report of Dr Clozza, general practitioner submitted by the guardian states that the poor control of the represented person's diabetes cannot be assumed to result from neglect.
The letter to the guardian from Dr Gan, endocrinologist, dated 21 February 2006, does report lack of contact between him and the parents regarding the management of the represented person's diabetes, including an apparent reluctance on their part to perform additional blood tests during the day. Dr Gan states in the letter that the represented person had missed "a couple of appointments" and that he had sought the assistance of the parents to do a further pre‑lunch reading, and that he understood there to be some reluctance, reported by carers, on the part of the represented person's parents to perform more glucose readings during the day to allow appropriate insulin dose adjustment. Dr Gan stated that he had not met the parents himself, and so felt unable to comment on their reason for apparent reluctance and stated that those readings would have been "desirable for the appropriate adjustment of [the represented person]'s insulin doses". The final paragraph of that report states:
"Following the involvement of the [DSC] it does appear that [the represented person] has achieved better glycaemic control over the last several weeks at his last review with me on 13th February [sic]. The appropriate home glucose measurements are now being performed which allow us more accurate optimisation of his insulin doses."
The lack of contact with Dr Gan may be seen as consistent with the reported reliance by the parents on carers for medical appointments. There may be a number of reasons for this, including the language barriers experienced by the parents in dealing with health professionals.
The Tribunal accepts that some inappropriate foods may have been given by carers which the parents could not control other than providing a packed lunch which they chose not to do.
The report of Dr Gan confirms that the represented person's blood sugar levels are more controlled since he has moved away from home, and this may be as a result of closer monitoring of these levels and stricter control of his diet than had been achieved at home. It is noted that Silver Chain are visiting the represented person twice daily in the DSC accommodation to administer the tests and his insulin injections; something that had not been available when he was in the care of his parents.
Personal care/continence management
The other issue raised in the original application, is the alleged mismanagement of the incontinence of the represented person leading to breakdown of his skin. The reports refer to an increased risk of skin breakdown if the incontinence of the represented person's is not properly managed.
The report of Ms Toland, dated 23 September 2005, provides information about the referral from DSC to Silver Chain in May 2005 for the purposes of developing a care plan for the represented person because of "longstanding" issues of "continence and skin breakdown". The report refers to subsequent home visits and assessment of the represented person's living situation and the development of a care plan "focussing on bowel and bladder management". It refers to a meeting at home on 26 July 2005 with "the physio, OT, the applicant, DSC carers, [the represented person] and his parents". The report notes that it appeared to the writer to be a successful meeting.
The report notes that later a regular carer was "asked to leave" by the parents. This was described as "unfortunate as he had developed a good relationship with [the represented person] and was following the care plan". The report goes on to say:
"Since this date [the represented person] has had a succession of casual carers. This has had a detrimental effect on [the represented person]'s progress. The care plan is not being implemented and as a result we are now having more skin breakdown issues. The [represented person]'s personal care is being neglected in the afternoon. The Silver Chain carer who attends in the evening to put [the represented person] to bed has reported many times that she finds [the represented person] in a wet pad and sometimes he is sitting in faeces. His wheelchair is often wet, on occasion she has found a pool of urine under his chair. From [when] the DSC carer leaves in the afternoon around 4pm to 9pm at night when the Silver Chain carer arrives there appears to be no personal care provided. [The represented person] has also stated when his father attends to his care he can be rough and abusive."
The allegation is that the represented person's wet and soiled nappies, or pads, were not dealt with by the family during periods in the day when there were no paid carers and during the night. The parents agree that they knew of the problems with the represented person's skin but state that it is the day time carers' role to change the represented person before they leave for the day at 4 pm.
The mother concedes that the represented person had been left wet on two occasions to "prove the problems being experienced with carers to the Silver Chain". The submission by the Public Advocate was that the progress notes documented 19 occasions when the represented person was found to be wet or unchanged. The guardian noted in her report that this had contributed to discomfort and embarrassment experienced by the represented person.
The integrated progress notes in which the Silver Chain notes were made regarding the failure to change the represented person were kept in the home during the period. The mother appears familiar with them and refers to them as "his book". The sister had reportedly stated to the guardian that she had been aware of pools of urine under the represented person's wheel chair, but stated she did not understand why this was occurring.
We find that the parents were aware of the link between the breakdown of the represented person's skin and the management of his incontinence.
We acknowledge the pressures on the family of the care of the represented person with his high‑level of dependence and double incontinence, and the personal and financial pressures this places on them, but consider that in the context of the known health care plan to prevent future excoriation of his skin and the history of painful skin breakdown that he has suffered that the decision to leave him unchanged on any occasion was inappropriate.
We accept the submission of the guardian that the failure of his parents to provide a change of his wet or soiled clothing during a period of time when he was completely dependent on their care is undignified and a neglect of his needs.
Problems with the carers
Both the applicant and the parents state that during the hearing there have been problems with the paid carers employed to care for the represented person between 9 am and 3 pm or 4 pm each day.
From the parents' point of view, it appears that the problems with the carers only arose when funding arrangements for the payment of carers had changed.
The applicant states that the complaints regarding the relationship between the carers and the family of the represented person are long standing and that a number of carers had refused to provide care to the represented person because of the antagonistic attitude of his parents to them. The parents expressed concern about the way that the represented person had been cared for by the carers, including the provision of food which is not suitable for his diabetic diet and the failure to change him after outings and before they left in the afternoon.
On the side of the applicant, the concerns about the lack of provision for care items such as razor blades, other toiletries, continence aids and money for outings had been an ongoing problem and allegations were made of inappropriate comments and verbal abuse of carers by the father.
It may be that some of the concerns expressed by the parents regarding the care provided are justified particularly in relation to the provision of food to the represented person in line with his wishes but inconsistent with his need to control his diabetes. It was apparent from what we heard that there have been significant communication problems between the carers and the parents, with the carers unwilling to be direct with the parents about their concerns and allegations.
Whatever the position, it appears that the care provided to the represented person while living at home from both his parents and the paid carers did not consistently meet his needs.
All of the agencies involved in his care including the DSC, Silver Chain who provide the nursing care, and the People With Disabilities who independently advocated for him considered that his care needs had not been met while living at home. This view is supported by the Public Advocate who submits that the guardianship order should be confirmed.
The wishes of the represented person
The wishes of the represented person, as expressed at the original hearing in December 2005, were that he leave home. His expressed wish to the Tribunal on review of the order was that he return home. The guardian emphasised at the hearing on 28 March 2006 that the decision to remove the represented person from his parents' care was based on his expressed wish that he wanted to leave home in the context of the allegations that had been made. The wish of the represented person to leave home had been known by the applicant and the parents for some time. Ms Walker who had interviewed the represented person independent of his family in November 2005 confirmed his strongly expressed wish to leave home at that time. His parents had acknowledged that he had expressed this wish but they stated that they considered he was not ready to leave home on his own.
While the guardian stated that the process of the removal of the represented person from home following the order had not been a good one, in light of his strongly expressed wishes to move, those wishes had to be respected. In an effort to ascertain his wishes, the Tribunal spoke with the represented person in the presence of the guardian prior to the commencement of the hearing on 4 April 2006. At that time he reiterated his wish to go home to live with his parents and his disappointment about the placement in which he was currently living.
The guardian, while acknowledging his wishes, submitted that there was a need for someone else to make the decision on the represented person's behalf as he was not able to make decisions in his best interests.
The report of Ms Evans refers to her view that the family of the represented person had been withdrawing attention and affection from him since his removal from their home. The family denied this, stating that his whereabouts had not been known to them for some time.
At the time of the review hearing, it appeared that the address of the represented person was known to his family since sometime in January 2006.
It appeared that contact between the represented person with his family has been limited, at first it seems because the parents were denied access and not made aware of the address by the guardian, then because of problems experienced in having contact at a public place, such as a shopping centre, and more recently because the family have decided not to visit because of the manner of the removal of the represented person from their care.
At the review hearing his family stated that contact by family members, especially his extended family would be limited by the move away from the family home. It was said that this was because spontaneous contact from extended family members dropping in to see the represented person would be reduced.
When interviewed on his own, the represented person stated that he had lived most of his life at home and that he would go back there to "finish his life" there. When asked about his previously expressed unhappiness about living at home he said "that's past". He wanted to go home because he said he wanted to "see my uncles", "be closer to the shops" and "get my carers back".
He said that (in his present placement) he had different carers everyday, and that they didn't understand him. He said that he just wanted to "have a break and it's been too long now". He stated that he missed his friends and "going around the block".
When asked if similar problems that had arisen in the past occurred again, what he would do about it, he said "I would just put up with it". When asked to comment about the problems that had precipitated his previously expressed wish to leave home before, he said "no comment".
Need for an administrator
The Tribunal heard that the represented person had been dependent on his family for all of his banking. It appears that he does not have control over his funds but is given "pocket money".
The applicant referred to a number of complaints from carers in relation to the unavailability of funds to purchase personal items and to make funds available for planned outings.
The report refers to management of the "Post School Options" funding and concerns which had resulted in the return of the funds to management by DSC in September 2005 against the wishes of the parents. The report notes the family were asked to provide carers with $30 per day to cover all costs of outings and taxi fares, however, this was not occurring.
It was submitted that carers were sometimes paying for social outings from their own pockets, hoping later to be reimbursed by DSC. There are notations in the integrated progress notes of the failure to provide items for the personal care of the represented person.
In relation to the management of his pension income, the evidence of the parents is that the represented person's pension was merged into the family income and household budget with no apparent separation of his funds from those of other members of the family.
It is understood that the father of the represented person is on a pension, but that both the mother and sister work at least part time. It is understood also that the family are on a low income and the Tribunal accepts, as submitted by the parents, that there may be additional costs of care of the represented person both from heating and telephone costs.
The family stated in their submissions that too high an emphasis was placed on the recreational needs of the represented person by DSC when other basic needs went unmet, particularly in the area of continence aids.
The Tribunal had asked Public Advocate to investigate the need of the represented person for the appointment of an administrator when the application was adjourned in December 2005. The investigator, in his report to the Tribunal, noted the unwillingness of the mother to cooperate with him or to provide details of the bank statements of the represented person.
Since the hearing in December 2005, the applicant stated that all of the represented person's accommodation and care needs were being met by DSC. The report of the Public Advocate referred to requests being made by the DSC of the parents for the release of funds of the represented person but that no funds had been forthcoming. The report also notes that since being placed in supported accommodation, none of the represented person's clothing or possessions had been made available to him, despite requests to the parents by DSC staff.
The parents stated at the time of the hearing, that they had not drawn on the funds of the represented person at all since the time he had been removed from their care and agreed that they would provide a bank statement to the Tribunal. The parents stated that they had not supplied the clothing and possessions of the represented person as they had not been asked to do so. They stated they considered that there had been purchases of clothing by DSC that had not been needed because the represented person had clothes at home.
The bank statement submitted by the mother at the hearing on 11 April 2006, confirmed that there had been some drawings from the account in the period 31 December 2005 to 31 March 2006 in the amount of approximately $800.
While it is acknowledged that the family were distressed by the events that had occurred in the removal of their son from their care, their comments in relation to the continued control of his money if he was not returned to their care, were considered by the Tribunal to show an inability to respond to his current needs.
Conclusion
The professional opinion from the agencies involved in the care of the represented person is that his care needs have not been met in his own home, with serious consequences for his health both in relation to the diabetes and his skin integrity. The allegations of physical and sexual abuse of the represented person by his father are unable to be resolved.
We accept that the represented person made a statement using the word "rape" to Ms Walker, however, the represented person has made no further statements regarding this and now says this allegation is "not true". It may be that the allegation will never be resolved satisfactorily from the point of the represented person or of his father.
The decision of the Tribunal to continue the appointment of a guardian is not based on this allegation, but rather on the weight of the evidence of the professionals who have assessed that situation in relation to the day‑to‑day care of the represented person, particularly in relation to the management of his diabetes and his incontinence.
While the Tribunal accepts that the represented person is a person who can express his wishes, his decision making capacity is impaired and he is vulnerable and dependent. He is not able to act on his own behalf in relation to his most basic personal needs. He is reliant on others and so is vulnerable if those needs are not met in the place where he is living. It is in these circumstances that his expressed wish to return home must be balanced against his health and safety needs and an independent guardian appointed to determine where he should live.
The Tribunal was concerned to hear of the experience of the represented person over the Christmas period and the restriction on his contact with his family on Christmas Day. The Tribunal directed the guardian to have regard to the maintenance of his familial and cultural relationships in relation to the special feast day of Easter which had particular cultural significance for the family of the represented person.
While the parents remained opposed to the guardianship order and the decision of the guardian to place the represented person in supported accommodation outside his family home it was considered that they would not cooperate with the service provider to meet the financial needs of his day‑to‑day care from his pension if they continued to control it. For these reason an independent administrator is required.
Orders of the Tribunal
1.The Public Trustee of 565 Hay Street, Perth was appointed plenary administrator for the estate of the represented person with all the powers and duties conferred by the GA Act, and the order was to be reviewed by 11 October 2006.
2.On review under s 84 of the Guardianship and Administration Act 1990 of the Order dated 13 December 2005, the order appointing the Public Advocate is revoked and an order in the following terms is substituted for it:
i.The Public Advocate 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)Subject to Division 3 of the Part 5 of the Guardianship and Administration Act 1990 to consent to any treatment or health care of the represented person;
d)To determine what contact, if any, the represented person should have with others, and the extent of that contact; and
e)To determine the services to which the represented person should have access.
ii.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.
iii.The guardian is directed to negotiate with the Disability Services Commission or any other relevant service provider for the provision of an appropriate level of care to enable the represented person to participate with his family at home in cultural, religious and family occasions, including the possibility of overnight stays should he express the wish at Easter and at other times if the guardian can be satisfied as to the level of care provided.
3.The order to be reviewed by 11 October 2006.
I certify that this and the preceding [116] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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