MH
[2022] WASAT 74
•25 AUGUST 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: MH [2022] WASAT 74
MEMBER: PRESIDENT PRITCHARD
MS F CHILD, MEMBER
MS M HIPWORTH, MEMBER
HEARD: 15 & 22 MARCH 2022, FURTHER WRITTEN SUBMISSIONS 30 MARCH 2022
DELIVERED : 25 AUGUST 2022
FILE NO/S: GAA 238 of 2022
MH
Represented Person
Catchwords:
Guardianship and administration Application pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) Application to revoke the appointment of the Public Advocate as limited guardian Whether represented person is unable to make reasonable judgments in respect of matters relating to her person, in need of oversight, care or control in the interests of her own health and safety, and in need of a guardian Diagnosis of likely senile squalor syndrome, secondary to dementia Whether plenary or limited guardian required What authority, if any, should be conferred upon a guardian for the represented person Whether children are suitable guardians Impact on family relationships
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 17A, s 27(1), s 27(2), s 43(1), s 110N(1), Part 7
Result:
Guardianship order made appointing family member as limited guardian of represented person to be reviewed within 2 years
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Briginshaw v Briginshaw[1938] HCA 34;(1938) 60 CLR 336
FY[2019] WASAT 118
GC and PC [2014] WASAT 10
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
PG[2021] WASAT 81
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Mrs MH has applied, pursuant to s 17A(1) of the Guardianship and Administration Act 1990 (WA) (GA Act), for the review of a decision made by a single member of the Tribunal on 17 December 2021 (Review Application).
In that decision, the learned Senior Member declared that Mrs MH was incapable of looking after her own health and safety, unable to make reasonable judgments in respect of matters relating to her person, in need of oversight, care or control in the interests of her own health and safety, and in need of a guardian. He appointed the Public Advocate as the limited guardian for Mrs MH with the function of determining the services to which she should have access, in particular, but not limited to, the services required to make the property in which Mrs MH lives habitable, safe and secure. The learned Senior Member also suspended the operation of an enduring power of guardianship (EPG) made by Mrs MH on 7 December 2021, to the extent of the function given to the guardian. The learned Senior Member ordered that the guardianship order be reviewed by 17 March 2022.[1]
[1] For completeness we note that an application for the appointment of an administrator was adjourned, and the learned Senior Member requested that the Public Advocate investigate the need for an administrator to be appointed. The appointment of an administrator is not in issue on the review.
In the Review Application, Mrs MH seeks that the Tribunal set aside the orders made by the Senior Member. She says that she is not incapable of making her own decisions, and that the guardianship order was manifestly unjustified under the terms of the GA Act.
For the reasons which follow, we have concluded that Mrs MH is incapable of looking after her own health and safety, is unable to make reasonable judgments in respect of matters relating to her person, is in need of oversight, care or control in the interests of her own health and safety, and that she is in need of a guardian. We are satisfied that MrsMH's son, Mr SH, should be appointed her limited guardian, with the functions that we discuss below. Given that Mrs MH's circumstances may change in the foreseeable future, we consider that the guardianship order we now make should be reviewed within two years. Having regard to our findings about Ms AH's suitability to act as Mrs MH's guardian, the EPG should be revoked.
Factual background
Mrs MH is 92 years of age. She was born in the United Kingdom. She trained as a nurse and worked in various locations, before migrating to Western Australia. She was married for many years before her husband passed away in 2000.
Mrs MH and her husband had two children: Mr SH and Ms AH.
Mrs MH lives in a location (Town) in regional Western Australia in her own home (Home). Ms AH has been living in the Home with MrsMH for about 10 years.[2] Mr SH lives near Perth.
[2] ts 29, 22 March 2022.
Ms AH and Mrs MH have a close relationship. As we explain below, that relationship has features of mutual dependence. Mrs MH is extremely loyal to her daughter, and wishes to care for Ms AH. Ms AH herself recognised that she and her mother were 'very much intertwined'.[3]
[3] ts 68, 22 March 2022.
While Mrs MH enjoyed good health in her younger years, she now has some physical limitations, including weakness in her legs, which means she is susceptible to falls, and her mobility is limited. As a result, Mrs MH has a fear of falling. She walks using a walking stick,[4] although a walker may be preferable in the future. She requires assistance in showering and dressing. As we discuss below, concerns have more recently been raised that Mrs MH is showing signs of cognitive decline.
[4] ts 60, 2 March 2022.
Ms AH endeavours to provide care and support for Mrs MH. However, it is apparent that Ms AH's ability to do so is limited by her own health issues, which include physical limitations (back and shoulder problems). As we discuss below, Ms AH also suffers from mental health issues, including anxiety, which limit the assistance she is able to provide Mrs MH.
On 7 December 2021, Mrs MH granted the EPG and an enduring power of attorney (EPA), to Ms AH. The EPG provided that it had effect, subject to its terms, at any time that Mrs MH was unable to make reasonable judgments in respect of matters relating to her person. The EPG conferred on Ms AH all the functions of an enduring guardian, including making all decisions about Mrs MH's health care and lifestyle.
The matter first came to the Tribunal when Mr SH made an application for the appointment of a guardian and an administrator for Mrs MH. According to that application, Mr SH was concerned that MrsMH was quite frail, was experiencing early onset dementia or senility, that while she had moments of lucidity, she was unable to fully think and carry out decisions crucial to her ongoing care, and that she was 'under strong emotional control by [her] daughter who is living in the same house. Daughter is refusing care options offered by myself and external parties'. It was implicit in Mr SH’s application to be appointed guardian for Mrs MH that the EPG should also be revoked, pursuant to s 110N of the GA Act.
Much of the concern expressed by Mr SH and the medical and health professionals who gave evidence relied on the conditions inside the Home and in the yard outside it. As we explain later in these reasons, there is a very significant accumulation of items of various descriptions, and food, inside the Home, and the yard is cluttered with items and waste, the extent of this accumulation has become worse over time, and it has now reached the stage where concerns have been raised that the Home is unsafe for Mrs MH.
The nature of the review
Section 17A(1) of the GA Act permits any party who is aggrieved by a determination made by the Tribunal consisting of one member, to request the President of the Tribunal to arrange for a full Tribunal to review the determination. An express right of review is granted to any party who is aggrieved by a decision of a single member. Reviews under s 17A thus come within the Tribunal's review jurisdiction.[5]
[5] In contrast, reviews under Part 7 of the GA Act are within the Tribunal's original jurisdiction.
As the Tribunal is exercising its review jurisdiction, the hearing of the Review Application was conducted as a hearing de novo. Consequently, the hearing was not confined to the matters that were before the Tribunal at first instance but involved the consideration of new material including evidence and submissions that the Tribunal received at, or shortly after, the hearing of the Review Application.[6]
[6] State Administrative Tribunal Act 2004 (WA) (SAT Act), s 27(1).
Applications in the Tribunal for guardianship or administration orders under the GA Act are dealt with as inquisitorial proceedings. TheTribunal is required to give notice to certain persons who have, or may have, an interest in the proceedings, and invites or requires evidence from persons who may be able to give evidence relevant to the issues the Tribunal is required to determine. Some of the evidence the Tribunal received in this case was strongly contested by Mrs MH and Ms AH. Atthe same time, the evidence raised sensitive issues against the backdrop of strained relationships between Ms AH and Mr SH. For those reasons, the Tribunal required all parties to give their evidence under oath (a procedure not ordinarily adopted in proceedings under the GA Act). The Tribunal also gave Mrs MH and Ms AH, on the one hand, and MrSH on the other hand, the opportunity to challenge or clarify the evidence given by each other and by other witnesses, but required that any questions by way of crossexamination be put by the Tribunal itself, rather than by them directly, in order to ensure that the questions were relevant to the issues the Tribunal is required to determine, and to maintain the civility of proceedings.
The purpose of a review is to produce the correct and preferable decision at the time of the decision on the review.[7]
[7] SAT Act, s 27(2).
The issues for the Tribunal on the review are whether the requirements of the GA Act for the appointment of a guardian are met in relation to Mrs MH, and if so, who should be appointed guardian for MrsMH, what functions should be conferred on the guardian, and the duration for which any guardianship order is to operate before it is reviewed. Furthermore, as the application made by Mr SH implicitly sought the revocation of the EPG, in the event that the Tribunal now determines that a guardian should be appointed for Mrs MH, it will need to determine whether the EPG can co-exist with any such appointment, or whether the EPG should be revoked.
Principles governing proceedings under the GA Act
Before turning to examine these issues in more detail, it is appropriate to recall that in dealing with proceedings under the GA Act, the Tribunal is required to observe the principles set out in s 4 of that Act.
Under the GA Act, every person is presumed to be capable of, amongst other things, looking after their own health and safety and making reasonable judgments in respect of matters relating to their person, until the contrary is proved to the satisfaction of the Tribunal.[8] That important presumption applies in respect of every application under the GA Act, including the present Review Application.
[8] GA Act, s 4(3).
A guardianship order should not be made if the needs of the represented person could, in the opinion of the Tribunal, be met by other means less restrictive of the person's freedom of decision and action.[9]
[9] GA Act, s 4(4).
Furthermore, a plenary guardian shall not be appointed if the Tribunal is of the opinion that the appointment of a limited guardian would be sufficient to meet the needs of the represented person.[10] Anyorder appointing a limited guardian should be in terms that, in the opinion of the Tribunal, impose the least restrictions possible, in the circumstances, on the represented person's freedom of decision andaction.[11]
[10] GA Act, s 4(5).
[11] GA Act, s 4(6).
The primary concern of the Tribunal is the best interests of any represented person.[12] In considering any matter relating to a represented person, the Tribunal is required, as far as possible, to seek to ascertain the views and wishes of the person concerned.[13]
The evidence before the Tribunal on the Review Application
[12] GA Act, s 4(2).
[13] GA Act, s 4(7).
Mrs MH attended the hearing of the Review Application by telephone (on the first day) and by videoconference (on the second day). The Tribunal heard oral evidence and submissions from Mrs MH, and also provided her with the opportunity to make written submissions.
In addition to Mrs MH, a number of interested persons attended and gave evidence. They were:
•Dr DS, who is a general practitioner with almost 40 years' experience, and who has known Mrs MH for over 27 years;
•Dr NC, who heads the older adult team in a health service operating in the Town. Dr NC has worked as a psychiatrist for 20 years, and has been a consultant psychiatrist for the last 10 years;[14]
•Ms BC, who has tertiary qualifications in social work and works as a senior mental health professional in the Town's health service;
•Ms JF, who has been a friend of Mrs MH for more than six years;
•Mr SH;
•Ms AH; and
•Mr CM, who, as the delegate of the Public Advocate, was Mrs MH's limited guardian.
[14] ts 16, 15 March 2022.
Also in evidence before the Tribunal were a number of documents setting out evidence, or submissions, filed by Mrs MH. A written submission was also filed by Ms AH. Those documents were:
•undated submission of Mrs MH received by the Tribunal on 14 January 2022 (and filed in support of the Review Application);
•submission of Ms AH dated 12 March 2022 (amended 14March 2022) and filed 17 March 2022; and
•supplementary submission of Mrs MH, undated, filed on 30March 2022, by the leave of the Tribunal.
In evidence before the Tribunal were various medical reports prepared by medical practitioners and health professionals who have treated Mrs MH. Those documents included, relevantly:
•report of Dr NC, Consultant Psychiatrist, dated 3 February 2022;
•letter of Dr NF, Psychiatry Registrar, dated 23 December 2021;
•reports of Dr DS, General Practitioner, dated 2 and 8 December 2021 and 8 February 2022; and
•report of Dr TH, General Practitioner, dated 2 February 2022.
The Tribunal also received evidence in the form of reports prepared by service providers engaged in Mrs MH's care at various times, or who have conducted assessments of Mrs MH's care needs at various times in recent years, including:
•A letter addressed to Mrs MH, being a report from the local seniors' health and community rehabilitation team, dated 29July 2020 (Rehabilitation Report);
•report of the multidisciplinary team (MDT) at the local area mental health service to which Mrs MH had been referred, dated 12 January 2022;
•report of Ms BC, Senior Mental Health Professional, dated 21 February 2022;
•Community Rehabilitation Service Care Management Plan inrelation to an assessment in 2020, undated (Care Management Plan); and
•Aged Care Assessment Team (ACAT) Report dated 1 March 2022 (ACAT Report).
Also in evidence was a report provided by the Office of the Public Advocate (OPA) for the purposes of the hearing of the Review Application, namely:
•OPA Report dated 3 March 2022 (OPA Report).
Copies of the EPG and of the EPA were also in evidence.
Assessment of the witnesses
Mrs MH herself gave evidence. She spoke clearly, confidently and forthrightly. However, Mrs MH's evidence was limited in its scope, and repetitive. She answered questions but quickly and frequently reverted to recounting recollections about her earlier life.[15] In so far as her evidence dealt with questions of her own decision-making ability, we took this into account but recognised that she was unqualified to offer an opinion on her own cognitive capacity. In so far as Mrs MH's evidence concerned the state of the Home, her own personal care needs and whether those needs were being met, we regarded her evidence as unreliable, in that it was clearly influenced by her desire not to accept any premise from which criticism might be made of Ms AH. We took Mrs MH's views into account, while mindful of these limitations.
[15] See e.g. ts 55, 22 March 2022.
As for Ms AH, there were occasions on which her evidence was truthful and reliable, namely when she candidly acknowledged her own physical and mental health issues, and their consequences. We accepted that aspect of her evidence. However, we found the balance of Ms AH's evidence to be quite unreliable and we reject it. Her answers sought to minimise the impact of the state of the Home (especially the accumulation of items and waste) on Mrs MH's wellbeing, sought to minimise her own responsibility for, and contribution to, that situation, sought to lay blame at the feet of others for that situation, and displayed such a level of antagonism and hostility to all those who had attempted to intervene in the interests of Mrs MH's health and safety as to reveal a complete absence of objectivity.
Mr SH gave clear evidence. He was obviously very concerned about his mother's welfare, and sensitive to the difficult family dynamic. Mrs MH and Ms AH suggested that Mr SH was motivated by a desire to get Mrs MH out of her Home for some financial benefit, or because of some antagonism towards Ms AH. There was no independent evidence before us to support those assertions, and there was nothing in Mr SH's evidence to support those assertions either. We assessed Mr SH as a truthful and reliable witness and we accept his evidence.
Ms JF is a friend of Mrs MH who speaks to her regularly by telephone and sees her in person about once a month.[16] Ms JF attended to give evidence at the request of Mrs MH and Ms AH. We regarded Ms JF as a generally truthful and reliable witness, subject to two qualifications. First, Ms JF sought to downplay the extent of the accumulation of items and waste at the Home. Only in so far as her evidence as to those matters was consistent with that given by other witnesses do we accept it. Secondly, Ms JF gave evidence that Mrs MH showed no sign that she lacked capacity to make her own decisions concerning her personal care needs and affairs. While we accepted this was truthful evidence, we did not consider it reliable for the reasons explained below. We otherwise accepted the balance of Ms JF's evidence.
[16] ts 23, 22 March 2022.
As for Dr DS, he was clearly qualified to give a medical opinion about Mrs MH's cognitive capacity, and was especially qualified to do so given his long history of seeing Mrs MH as a patient. Mrs MH and Ms AH made submissions that Dr DS' evidence should be rejected as he was showing signs of a lack of capacity. There was nothing whatsoever to indicate any lack of capacity on Dr DS' part and we reject the suggestion to the contrary. Nothing in Dr DS' evidence suggested that anything other than a genuine concern for Mrs MH had motivated his evidence to the Tribunal. We had no doubt as to his honesty. We accept his evidence.
Dr NC gave evidence as to his opinion of Mrs MH's decisionmaking capacity, and also gave evidence as to what he saw when he visited the Home with Ms BC earlier this year. We had no doubt as to Dr NC's honesty and reliability, or as to his expertise to give the medical opinion he gave to the Tribunal. We accept his evidence.
Ms BC gave evidence as to her opinion of Mrs MH's insight into her health needs and ability to make sound judgments about personal care decisions, and also gave evidence as to factual issues, namely the attempts by members of the MDT at the Town to see Mrs MH to assess her wellbeing, and what she saw when she visited the Home in December 2021 and January 2022. In so far as Ms BC's evidence constituted opinion evidence, we regarded her as qualified to give that evidence, having regard to her qualifications, and experience working in mental health. In so far as she gave evidence as to factual matters, we assessed Ms BC to be a truthful and reliable witness. We accept her evidence.
Mr CM, Mrs MH's limited guardian, gave evidence as to his involvement as Mrs MH's guardian to date. We assessed his evidence as truthful and reliable, and we accept it.
Criteria for the appointment of a guardian
The appointment of a guardian requires that the Tribunal be satisfied as to the matters set out in s 43(1) of the GA Act. A guardian cannot be appointed unless the Tribunal is satisfied that the proposed represented person is over 18 years of age; is either incapable of looking after their own health and safety, unable to make reasonable judgments in respect of matters relating to their person, or in need of oversight, care or control in the interests of their own health and safety or for the protection of other persons; and is in need of a guardian.
If those criteria are satisfied, then the Tribunal is required to consider further questions, such as whether a plenary or limited guardian should be appointed, what functions should be given to a limited guardian, and who should be appointed the guardian.
Age
Mrs MH is clearly over 18 years of age, and we so find.
Whether Mrs MH is incapable of looking after her own health and safety, unable to make reasonable judgments in respect of matters relating to her person, or in need of oversight, care or control in the interests of her own health and safety or for the protection of others
We turn, then, to consider the evidence bearing on the question of whether Mrs MH is incapable of looking after her own health and safety, or is unable to make reasonable judgments in respect of matters relating to her person, or is in need of oversight, care or control in the interests of her own health and safety or for the protection of others. In considering that evidence, we start with the presumption in the GA Act that Mrs MH is capable of looking after her own health and safety and making reasonable judgments in respect of matters relating to her person.
Much of the evidence about those questions relied upon evidence about the circumstances in which Mrs MH is living in the Home, and the attempts of various parties, including Mr SH, and a number of health professionals, to intervene in, or at least to assess, those circumstances. It is convenient to deal with that evidence first.
The conditions inside Mrs MH's Home
Evidence about the state of the Home was given by Mr SH, by Dr NC and Ms BC, by Ms JF, and by Ms AH and Mrs MH.
Mr SH was in the best position to give evidence about the state of the Home, as he was the only witness, apart from Mrs MH and Ms AH, who had been inside the entire Home, and because he was able to comment on its deterioration over recent years.
Mr SH last visited Mrs MH and Ms AH at the Home in August 2021. Mr SH described the interior of the Home in the following way:
The internal is very, very cluttered with … items piled almost to the ceiling. …
It's very hard to find somewhere to sit down. For every room there's materials, goods and items piled on the floor and up almost to the ceiling. You … walk through very narrow sort of walkways in between. … [I]t's a bit like a pile of spill rock at an angle of repose. When I visit Mum and [Ms AH] … there's probably two seats in the house and three people so we have to work out where someone is going to sit. It's very obvious that with the lounges completely full - I mean, … you cannot move outside of a narrow walkway between all this stuff, there's no room to put a heater in … . Mum's bedroom is – it's piled onto the bed. Look, as a son, obviously, I've expressed concern about this over a number of years. … I've talked to Mum about this. I've asked the question as any, you know, probably rational person would ask, "why, how do you want to live like this?" And the - the answers always come back, you know, "I accept there's an issue, but, you know, I'm okay with what's going on".[17]
[17] ts 57, 22 March 2022.
Mr SH's evidence was that the problem with the clutter in the Home had gradually increased over the last 10 to 12 years. He said:
[I]t has got to a point beyond what a normal, rational person would say is just, you know, clutter. …[I]t has got really bad. … The – there's a lot of black mould in the … bathroom or through the bathroom. You know it's a combination of, I think, just a … lot of stuff that's preventing people getting in and cleaning things. I'm aware that when I go down that there's - you can hear them … the rats and stuff running around.[18]
[18] ts 7, 22 March 2022.
Mr SH explained that the items accumulated in the Home were household items and food:
[Y]es clothes, a lot of things that are purchased and still in the box, clothes, blankets, trinkets, books - a lot of books depending on the room. There's a lot of food piled up and … you know there's, I think, about four fridges at any one time full of food. It's … fair to say that you - you actually can't go into any room. I can't stay there. … I actually physically haven't got the space to stay there. There's no room that's clear that I can stay.[19]
[19] ts 7, 22 March 2022.
Ms JF said that she had been inside the Home but that she had not seen every room in the Home, including the bedrooms. Ms JF had only been into the front of the Home about three or four times in the previous six years.[20] She accepted that the Home 'is cluttered' and that 'in a couple of areas, there is … piles [of things] that might get high. I wouldn't say that they're … right to the ceiling, but there is clutter'.[21]
[20] ts 27, 22 March 2022.
[21] ts 24, 22 March 2022.
Ms JF was asked whether she had any concerns about Mrs MH's wellbeing while living in the Home. Her evidence was that 'living where she currently is is going to be maybe a little bit challenging for her, although, I'm not too concerned about her health and wellbeing'.[22] Ms JF explained that her concern was that Mrs MH was becoming less mobile, and 'if she needs a walker, [she needed] a little bit of space, you know, to be able to manoeuvre … with a walker'.[23] Ms JF said that while she had not done any measurements in relation to that, she thought it could be challenging to fit a walker in some areas of the Home.[24]
[22] ts 25, 22 March 2022.
[23] ts 26, 22 March 2022.
[24] ts 26, 22 March 2022.
Mrs MH did not dispute the evidence that there was an accumulation of items around the Home.[25] She described the items as 'good stuff' but acknowledged that 'a lot of the stuff can just go'.[26]
[25] ts 54, 22 March 2022.
[26] ts 54, 22 March 2022.
That evidence was consistent with what Mrs MH told members of a team of social workers and health workers (Health Team) at a Community Rehabilitation Service in the Town which she attended as an outpatient in 2020, for assistance in preventing falls. The Rehabilitation Report, prepared by the Health Team, noted that Mrs MH had raised a number of concerns with the Health Team about the state of the Home, including the existence of clutter in all rooms, the fact that Mrs MH had nowhere in the Home where she could sit to write letters or attend to business,[27] and Mrs MH's concern about her physical capacity to move around in that environment.[28]
[27] Hearing Book (HB) 46.
[28] HB 45.
Ms AH was asked about the evidence the Tribunal had received as to the clutter in the Home. She was asked whether she had accepted that there was clutter in the Home. Her evidence was '[a]bsolutely. Yes. No. I feel somewhat let down by my brother because we both understand there's a problem. I've never shied away from it.'[29]
[29] ts 32, 22 March 2022.
While Ms AH did not refute Mr SH's evidence that items were piled up in the house, she denied the extent of the problem:
[I]t has been very much exaggerated the height of the piles, you know, the narrowness of the walkways. That simply isn't true. There are big areas of … quite clear space. And … small little discrete piles, for example, in certain rooms. So it's certainly not the case that it's sort of piled to the ceiling in every room. That's a complete exaggeration. On the hoarding scale that I've seen, which goes from one to eight, it's probably equivalent to a three or a four. And that's … being quite honest. I mean, there's certain rooms are better than others. There's … the main areas, the kitchen, the bathroom, the living area, her bedroom, they're all serviceable. They're all habitable and usable. So, unlike situations where, in true cases of senile squalor, where people literally can't use any room of the house and they have … for example, their shower, their toilet … that's not the case in our house. So I think there's a … perception that isn't actually accurate about … what the state of [the Home] really is.[30]
[30] ts 4445, 22 March 2022.
However, a somewhat different picture of the extent of the accumulation of items emerged, incidentally, from Ms AH's evidence that she had purchased a walker for Mrs MH, but that it had not been used. She explained that the reason for that was that there was not enough room to move the walker through the house, because of the piles of clutter in the rooms and hallway:
Well, principally, I suppose, because you … couldn't run it through all the places … there are certain passageways you could easily run it. She could run it easily from her bedroom to the bathroom and into the kitchen. But she couldn't go easily, at present, from her bedroom to the living area where we sit. … Because you would have to move … through the lounge room, the formal lounge, which is … probably the most cluttered room in the place. And … there's a passage which is - is wide enough for people to walk through but not to have a walker go through at present.'[31]
[31] ts 46, 22 March 2022.
Ms AH accepted that the situation inside the Home had reached the point where it was 'out of control' for both Mrs MH and for her, and that the items piled up had become 'so overwhelming' that it was almost beyond either of them individually or together to do something about it.[32]
[32] ts 3233, 22 March 2022.
Having regard to the evidence of Mr SH, Ms JF, and of Mrs MH and Ms AH, we are satisfied, and we find, that the Home is in a state of disrepair and neglect. We are also satisfied, and we find, that the Home requires a thorough clean, to remove mould in the bathroom, and to deter vermin. Furthermore, we find that inside the Home, the accumulation of items in every room, and in the passageways, is significant. We find that throughout the Home, items including books, clothes, blankets and trinkets are piled up on the beds, chairs and lounges, and on the floors, in piles which in some cases nearly reach the ceiling, and that they are piled up in the passageways, reducing the space in which to walk, so much so that there is not room for Mrs MH to use a walker to walk through the Home. We find that the accumulation of items includes food, with four fridges in the Home stocked full of food, notwithstanding that only two people reside there.
We find that the environment of the interior of the Home is not conducive to Mrs MH's health and safety, given its state of cleanliness, and the substantial accumulation of items, which reduces where she can sit, and increases her risk of having a fall, including by virtue of the fact that she is unable to use a walker.
The external state of the Home and the yard
Mr SH's evidence as to the external state of the Home and the yard was as follows:
[O]ver the years I've seen the … house get more cluttered. …
… [I]t's basically falling down. There's a lot of repair and maintenance, gutters and eaves and things that are falling off the side. There has been a car crash incident at the bathroom which has created a hole … in the wall at the front of the house … and it's meant that one of the windows is blocked up.[33]
[33] ts 5, 22 March 2022.
Mr SH explained that the window had been blocked up with sheet board or cardboard.[34]
[34] ts 8, 22 March 2022.
Mr SH also described the conditions outside the Home as follows:
[T]here were bags and items just in - in the long grass … and then there were just individual items just lying around … .'[35]
[35] ts 8, 22 March 2022.
Ms BC visited the Home on two occasions - the first with Dr NF on 21 December 2021, and the second with Dr NC and Ms SD on 19 January 2022.[36] None of them entered the Home (and on the second occasion Mrs MH would not permit them to enter the Home).
[36] Ms BC's notes of the attendance at the Home on 19 January 2022 were in evidence: HB 101.
In notes prepared by Ms BC, she described the appearance of the Home on her first visit on 21 December 2021 as follows:
The front yard of the [H]ome appeared to be in a state of disarray with several non-functional motor vehicles and other rubbish … . There were excessive flies and it was overtly malodorous. We spoke with [Mrs MH] who was waiting out the front of her home to be collected by a friend. She appeared reasonably kempt but was dressed in visibly soiled clothing.[37]
[37] HB 104.
Ms BC said that the exterior of the Home did not appear to be in a good state of repair. It did not appear to have been painted for some time. She recalled that the glass in the front window of the Home was missing, and that the window had been covered with a tarpaulin attached to the front of the Home.[38]
[38] ts 40, 15 March 2022.
Ms BC said that she saw piles or bags of rubbish in the front yard, and that it appeared 'that someone has stepped outside the front door and thrown the rubbish and so it is in piles in front of the [Home]'.[39] Ms BC recalled that there was a narrow path to the front door, with rubbish - which appeared to be household rubbish and possibly some garden rubbish - on each side of that path. The rubbish appeared to have been placed there over some time because a lot of the bags were split and disintegrating.[40]
[39] ts 40, 15 March 2022.
[40] ts 40, 15 March 2022.
Ms BC's evidence was that in her role she did many home visits to places that are in a very adverse state, and the Home was as bad as she had ever seen.[41]
[41] ts 41, 15 March 2022.
Dr NC said that when he attended the Home on 19 January 2022, the yard was very cluttered and overgrown.[42] He observed that the Home looked
very dishevelled from the street. Things looked very untidy and there was a lot of rubbish prior to the front door. There seemed to be garbage and there was food within bags that we could see that were fly-infested. So it didn't look terribly sanitary or that it had been tended to any time recently.[43]
[42] ts 32, 15 March 2022.
[43] ts 19, 15 March 2022; see also page 32.
Ms JF acknowledged that the Home had been damaged when a car crashed into the bathroom. While she agreed that initially the hole in the wall had been blocked with board or cardboard, she said that that had since been better secured with a tarpaulin over it, until it could be repaired. She acknowledged, however, that the hole in the wall had been there for at least a year.[44]
[44] ts 26, 22 March 2022.
Ms JF said that she had been to the Home about five weeks before the hearing, when she and her husband had done some gardening work for Mrs MH. Ms JF acknowledged that there were items in the front yard outside the Home. She said there were extra rubbish bags, and a variety of items, some still in their packaging. She accepted the yard was 'a little bit cluttered … so - yes, there is some things around there'.[45] (Having regard to the evidence of the other witnesses, which we accepted, we regarded this as an example of Ms JF seeking to downplay the extent of the accumulation of items and waste at the Home).
[45] ts 27, 22 March 2022.
According to the ACAT assessment conducted on 1 March 2022, Ms AH herself had acknowledged that 'the garden and home are cluttered with belongings and waste, rendering it unhygienic and making it difficult for [Mrs MH] to safely mobilise in'.
Having regard to the evidence to which we have referred, we find that the outside of the Home is in a state of disrepair and neglect, and is in need of repair and maintenance, including to repair the hole in the front wall which has been boarded up, to repair the gutters, and painting. We find that the front yard is strewn with bags of rubbish and other items.
Who was responsible for the accumulation of items inside the Home?
Mr SH's evidence as to who owned the items accumulated inside the Home was:
[A] lot of the - the volume stuff is [Ms AH's] stuff and so the inanimate - the inanimate non-food objects are [Ms AH's] a lot of that - the majority. And I think … they contribute volumetrically significantly more, obviously. The food is - is a combination of Mum and [Ms AH] but Mum has a - you know, has always had a - a trouble - a struggle with food - throwing out food and … but certainly, the volumetric part of it - the stuff that makes it - would make it logistically very difficult to - to deal with is - is [Ms AH's].[46]
[46] ts 8, 22 March 2022.
Ms AH described the situation that she and her mother faced as hoarding.[47] However, Ms AH denied that she herself had difficulty in throwing things away. Rather, she said that her problem lay in buying things:
I wouldn't say so. I think my problem, essentially, I buy things because I - you know, I want to – it's my - I suppose it's my drug, I suppose. I don't drink. I don't take, you know, other types of drugs, apart from my medications. It's my - its my, you know, thing that I do to kind of give myself joy in life.[48]
[47] ts 35, 22 March 2022.
[48] ts 48, 22 March 2022.
Ms AH explained the accumulation of items in the Home in the following way:
Well, it's a complex thing. I have suffered and … I will admit, I've got some issues, I have some anxiety disorders, I have some autoimmune conditions, I have various things that, you know, fuel my anxiety, including especially family disharmony and I honestly, you know, the desire to change is there, it's 10 out of 10, but I just lack - I lack the, first of all, the financial resources to actually do very much. The stuff outside the house is my attempts at trying to actually move stuff out to clear the inside so that we can get mum's walker. I have a walker already boxed and ready to go. I'm already trying to put things out there. It's kind of a desperation measure because I haven't got the means to have it taken away. Mum has been very opposed to having skips in the past and she does have … [a] very strong, you know, don't throw out, don't waste anything mentality, which I think has come from going through World War II.[49]
[49] ts 32, 22 March 2022.
We asked Ms AH whether she agreed with Mr SH's evidence that the accumulation of items in the house was largely hers, and the accumulation of food was largely Mrs MH's doing. Ms AH said that it 'was a bit of both'. However, she accepted that 'there are lots of my items in the living room and … I suppose, in other rooms as well. … I've had nowhere to put things.'[50]
[50] ts 4748, 22 March 2022.
Having regard to the evidence of Mr SH and Ms AH, we are satisfied, and we find, that the items accumulated inside the Home belong largely to Ms AH. In so far as the accumulation of food is concerned, we find that that is largely attributable to Mrs MH. As for the items and waste in the yard, we find that they have accumulated in the yard because Ms AH put them there.
Attempts by health practitioners and social workers to visit Mrs MH at the Home
Dr NC and Ms BC gave evidence of attempts by health practitioners and social workers, who were part of the MDT, to speak to Mrs MH and to visit her at the Home, for the purpose of making an assessment of her cognition, and of whether her care needs were being met. Having regard to their evidence, which we accept, we make the following findings.
The MDT was comprised of health practitioners and social workers, namely Dr NC (assisted by his registrar Dr NF), Dr DS, Ms BC and Ms SD. In late 2021, Dr DS sent a referral to the MDT requesting an assessment of how Mrs MH was managing in the Home, whether her care needs were being met, and whether there was any cognitive impairment.[51] The MDT's role in such cases is to assess a person's cognitive impairment and the reasons for it, and then assess what was required to organise care for the person.[52]
[51] ts 17, 15 March 2022.
[52] ts 19, 15 March 2022; see also the evidence of Ms BC at ts 37, 15 March 2022.
Members of the MDT made repeated attempts to contact Mrs MH and Ms AH. On several occasions they tried to telephone Ms AH, with no success. They sent a text message, and wrote a letter, but did not receive any response.[53]
[53] ts 3839 and 47, 15 March 2022; HB 111.
Dr NF and Ms BC visited the Home on 21 December 2021.[54] On that occasion, Mrs MH was waiting outside the Home, as she was about to go out.[55] Dr NF and Ms BC explained to Mrs MH that they were there to make a time to attend and undertake an assessment. They did not carry out any assessment of Mrs MH that day, and did not enter the Home on that occasion.
[54] ts 40, 15 March 2022.
[55] ts 48, 15 March 2022.
Ms BC subsequently telephoned Mrs MH, and made an arrangement to visit the Home with Dr NC on 19 January 2022. She later confirmed the intended visit.[56] Ms BC's evidence was that it was her practice, in arranging such visits, to explain to the person the purpose of the visit, and she was confident that she would have done that during her discussion with Mrs MH.[57]
[56] ts 39 and 47, 15 March 2022.
[57] ts 47, 15 March 2022.
Dr NC and Ms BC attempted to visit Mrs MH at her home on 19 January 2022. Mrs MH did not want to open the front door to the Home, so they spoke to her by telephone from the front door of the Home. They explained to Mrs MH that they were there to undertake the assessment which Mrs MH had agreed, in her earlier phone conversation with Ms BC, to undertake.[58] Dr NC said that he spoke to Mrs MH only briefly, and it was clear that she was very emotional and distressed.[59] Whilst at the Home, they also spoke by telephone for about 15 minutes with Ms AH but 'she became angry and uninterruptable with a series of grievances towards services'.[60] It was apparent, after talking to Ms AH, that neither Ms AH nor Mrs MH wanted to let them into the Home.[61]
[58] ts 48, 15 March 2022.
[59] ts 17, 15 March 2022.
[60] HB 97.
[61] ts 17, 15 March 2022.
Mr CM, Mrs MH's limited guardian, reported that an ACAT assessment at the Home had not been possible because Mrs MH refused to permit that to occur. He said:
The ACAT assessors who visited [Mrs MH] have reported back that they have not been able to engage the parties or enter the property to complete an in-person assessment. Given that an in-person assessment was not possible, a phone assessment for ACAT was organised on 18 February 2022. A phone ACAT assessment was completed on 1 March 2022.[62]
[62] HB 76-77.
Ms AH claimed that the reason no in-home ACAT assessment had been conducted was due to COVID-19 restrictions. There is no other evidence to support that conclusion, and in particular, there was nothing in the ACAT Report to indicate that that was the reason an in-home assessment had not been undertaken.
We prefer the evidence of Mr CM as to the reason why an in-home ACAT assessment was unable to be conducted.
Having regard to the evidence to which we have referred, we are satisfied, and we find, that Mrs MH and, in particular, Ms AH, have refused to let staff of the MDT, and the ACAT, into the Home for the purpose of conducting an assessment of Mrs MH, and in that way have impeded Mrs MH's access to services provided by health care and aged care professionals.
The medical evidence in relation to Mrs MH's decisionmaking capacity
We turn, next, to consider the medical evidence in relation to Mrs MH's decisionmaking capacity.
Dr DS
The Tribunal required Dr DS to provide a written report and to give oral evidence at the hearing. In his report of 8 February 2022, Dr DS set out his opinion that Mrs MH has a mental disability (as defined in the GA Act) which he described as a cognitive impairment, demonstrated by factors such as Mrs MH's inability to deal with complex issues, her inability to adapt, and her interpersonal behaviour. Dr DS explained that the personality Mrs MH displayed on the various occasions on which he saw her in 2021 was very different from the personality she had previously displayed, in that 'she turned to [Ms AH] to answer a lot of questions. She wasn't her … jolly, interactive self. The content of the conversation from her was limited and not as expressive as in past years'.[63]
[63] ts 9 and 11, 15 March 2022.
Dr DS noted that no formal assessment had been conducted but stated that he had reached his opinion as a result of a gradual impression he had formed during the second half of 2021, as a result of seeing Mrs MH on various occasions between June and September 2021, and as a result of other interactions with the ACAT and mental health services in the Town.[64]
[64] ts 8 and 15, 15 March 2022.
Dr DS' evidence was that there were a number of possible causes of Mrs MH's cognitive impairment. The most likely was dementia,[65] but depression was another possible cause.[66] Because he considered the likely cause to be dementia, Dr DS' opinion was that Mrs MH's condition was progressive.[67]
[65] ts 910, 15 March 2022.
[66] ts 15, 15 March 2022.
[67] ts 10, 15 March 2022.
Dr DS' evidence was that as a result of her cognitive decline, Mrs MH was incapable of making reasonable decisions in relation to medical treatment and procedures, accommodation, and services, and that in respect of services, Mrs MH 'will accede to the views and opinion of … [Ms AH]'. Dr DS also opined that Mrs MH did not have the cognitive capacity to make reasonable decisions in relation to simple and complex financial matters and legal matters.
Mrs MH and Ms AH sought to challenge the veracity of Dr DS' evidence by contending that he had not previously raised with them his concerns about Mrs MH's cognitive decline.[68] We asked Dr DS whether he had ever raised with Mrs MH his concerns about her cognitive impairment. His evidence was that he had indicated to her that he 'would be seeking an ACAT assessment, and that further assessments would be needed'.[69] We accept Dr DS's evidence in that respect, and we find that he had previously raised with Mrs MH and Ms AH his concerns about Mrs MH's cognitive decline.
The evidence of Dr NC
[68] ts 1213, 15 March 2022.
[69] ts 12, 15 March 2022.
Dr NC was not able to undertake a formal assessment of Mrs MH because she refused to participate in any such assessment. Dr NC's contact with Mrs MH was confined to a conversation with her by telephone on 19 January 2022 when Mrs MH refused to answer the door when he and Ms BC attended at the Home. However, having regard to what he saw at the Home on that occasion, to what Dr NF and Ms BC reported from their brief visit to the Home in December 2021, and to Dr DS' concerns, Dr NC formed an opinion as to Mrs MH's likely mental state. Dr NC's evidence was that Mrs MH may be suffering from senile squalor syndrome. He thought that was a reasonable diagnosis based on the sources of information we have outlined.[70]
[70] ts 20, 15 March 2022.
Dr NC explained that senile squalor syndrome is:
a strain of syndrome that occurs later in life [and] … has a number of names. [A] person who is older, typically in their 80s or 90s, shows a disregard for personal care and also their living circumstances in terms of their house being uncluttered and clean. It can be a primary syndrome, but to say it's a primary syndrome you must exclude secondary causes first. And so some other causes that can cause this syndrome include depression and also a dementia such as frontotemporal dementia. So the syndrome can be primary in origin or secondary to other clinical issues … .
… [For] people who have this primary syndrome who do not seem to have a dementia or depression, there are still executive impairments, namely, the ability to weigh information. So typically, if you needed your house to be cleaned, that would require a number of sequenced tasks and the ability to assimilate information to identify the problem, broker a solution. So these executive impairments, this ability to weigh information … is known to exist in senile squalor syndrome, primary syndrome.[71]
[71] ts 2021, 15 March 2022.
Dr NC's opinion was that Mrs MH's likely diagnosis of senile squalor syndrome was secondary to an emerging dementia, based on the exclusion of other possible causes. He noted that the prevalence of dementia in a person older than 90 years of age is at least 50%. Given the reports he had from Dr DS as to Mrs MH's executive difficulties and personality changes, Dr NC regarded dementia as the likely explanation for Mrs MH's senile squalor syndrome.[72]
[72] ts 21, 15 March 2022.
Dr NC explained that senile squalor syndrome was not something that could be resolved and was a difficult condition to treat. His evidence was that it is normally managed
through protracted assertive outreach, so in gaining the trust of the person that it affects and assisting them with things like decluttering and cleaning a home, but because of the nature of the syndrome, there can be a lot of things that need to be sorted, a lot of rubbish that needs to be removed. So there are solutions but it takes time and you need to be able to [engage] with the person for those … things to occur.[73]
[73] ts 21, 15 March 2022.
Dr NC's opinion was that Mrs MH did not have the capacity to make reasonable decisions in relation to medical treatment and procedures, in relation to accommodation, and in relation to the services that she might require.[74]
[74] ts 22, 15 March 2022.
Dr NC explained that Mrs MH's presentation during the hearing - in which she spoke lucidly and was well able to make known her view that a guardian was not required - was not inconsistent with a diagnosis of senile squalor syndrome.[75] Dr NC pointed to other aspects of Mrs MH's evidence, and presentation, at the hearing as consistent with that likely diagnosis: for example, the fact that Mrs MH said that she did not remember their conversation on 19 January 2022 (which Dr NC described as a 'fairly dramatic encounter'), and her variable attitude towards engaging with the MDT.[76]
[75] ts 30, 15 March 2022.
[76] ts 30, 15 March 2022.
Ms AH indicated that throughout her life, Mrs MH had always been disinclined to throw things out, and that other family members had had the same characteristic. We asked Dr NC whether that history cast doubt on his diagnosis of senile squalor syndrome. He opined that it did not, because the information he had from Dr DS was that previously Mrs MH had maintained her house and herself in perfect order.[77]
[77] ts 35, 15 March 2022.
Mrs MH contended that Dr NC's opinion was merely an assumption, and he had no knowledge of what she could actually do. We are unable to agree with that contention. While it is true that Dr NC has not tested Mrs MH's cognitive capacity, his opinion was based on the concerns raised by Dr DS, whose evidence we have accepted, and on the observations of the state of the outside of the Home made by Dr NF and Ms BC, together with his own observations. His conclusion was also consistent with the evidence of Mr SH as to the conditions inside the Home.
The report of Dr NF
Dr NF is a psychiatric registrar who works with Dr NC and is part of the MDT. In a letter dated 23 December 2021, Dr NF wrote to Dr DS in response to Dr DS' referral of Mrs MH for an assessment, and outlined the MDT's attempts to contact Mrs MH.
In addition, Dr NF advised that the MDT's impression of Mrs MH, on the basis of the available information, was of senile squalor syndrome, likely to be secondary to an emerging dementia. He also noted that the MDT's view was that Mrs MH's situation was 'complicated by [Ms AH's] hoarding tendencies, and some sibling discord between [Mrs AH] and [Mr SH]'.[78] The opinions expressed by Dr NF in this letter appear to reflect the views of Dr NC and the remainder of the MDT. We have regarded them as such.
Ms BC's evidence
[78] HB 109.
Ms BC was reluctant to offer her opinion on Mrs MH's capacity until she had had the opportunity to undertake a full assessment of Mrs MH's capacity.[79] However, Ms BC was of the view that Mrs MH demonstrated a lack of insight into her situation, and that that lack of insight was evidenced by Mrs MH's denial of the unhealthy, and potentially dangerous, conditions in which she was living, which were observable and measurable, but not recognised by Mrs MH herself.[80] Ms BC also regarded Mrs MH's rejection of the services which had been offered to her for her personal care needs as an indication of her lack of insight into her circumstances. Ms BC was of the view that Mrs MH's rejection of services to assist with her personal care, and the circumstances in which she was living, called into question her capacity to be able to make sound decisions about her accommodation and personal care needs.[81]
Report of Dr TH
[79] ts 43, 15 March 2022.
[80] ts 42, 15 March 2022.
[81] ts 43, 15 March 2022.
Since about December 2021, Mrs MH has been seeing a new general practitioner, Dr TH. Dr TH did not give evidence at the hearing, but the Tribunal received a report from him dated 2 February 2022.[82] In his report, Dr TH noted that he had seen Mrs MH twice in the two months he had known her.
[82] HB 26.
In his report, Dr TH expressed the opinion (without explanation) that he was unsure whether Mrs MH had the capacity to make reasonable decisions in relation to medical treatment and procedures, and in relation to services, but thought she was capable of making decisions about accommodation. Dr TH noted that he had not undertaken any assessment of whether Mrs MH was suffering from a mental disability.
Given the uncertainty in Dr TH's opinions as to Mrs MH's mental capacity, the short duration in which he has known her, and the fact that he also had not undertaken any assessment of her cognitive capacity, we prefer the evidence of Dr DS and Dr NC to that given by Dr TH.
Testing of Mrs MH's cognition
There was evidence that Mrs MH had in fact undergone an assessment of her cognitive capacity on two occasions.
First, during 2020, Mrs MH was an outpatient at the Town's Seniors Rehabilitation Service. The Care Management Plan prepared by the team of health professionals who assisted Mrs MH during that period was in evidence. The Care Management Plan noted that Mrs MH undertook a cognitive assessment with an occupational therapist, and scored 17 out of 30 on the Montreal Cognitive Assessment (MoCA) test.[83]
[83] HB 63.
Secondly, in his report, Dr TH noted that Mrs MH undertook a mini mental state examination (MMSE) on 11 May 2021 and scored 25 (out of 30). Dr TH noted that he did not perform the MMSE, and it was not clear from his report who had done so. Dr TH did not explain the implications of that MMSE score in his report.
However, Dr NC did address the significance of both the MMSE and the MoCA tests. Dr NC explained that while Mrs MH's MMSE score indicated a more preserved degree of cognition, a MoCA test is a more sensitive test for executive function as compared with the MMSE. Dr NC's evidence was that a score of 17 out of 30 on the MoCA test indicated 'at least a moderate degree of cognitive impairment'.[84] We accept that evidence.
Conclusion as to the evidence of health professionals, and test results, concerning Mrs MH's mental capacity
[84] ts 44, 15 March 2022.
For the reasons already given we prefer the evidence of Dr DS and Dr NC to that of Dr TH. There was no other medical evidence which contradicted the evidence given by Dr DS and Dr NC. We accept their evidence, for the reasons already given. Further, their evidence that Mrs MH is suffering cognitive decline is consistent with her result in the MoCA test she undertook sometime in, or about, 2020.
We also accept the evidence given by Ms BC as to Mrs MH's lack of insight and her questionable ability to make reasonable judgments about matters concerning her personal care. That evidence was consistent with the evidence of Dr DS and of Dr NC.
Other evidence as to Mrs MH's capacity to make personal decisions
Mr SH's evidence was that on the basis of his observations and discussions with Mrs MH, he did not have cause to question her cognitive abilities. However, he accepted that the medical professionals who had expressed concerns about Mrs MH's cognitive abilities may well have seen significance in different things.[85]
[85] ts 16, 22 March 2022.
Ms JF's evidence was that she thought Mrs MH was 'very sound of mind' based on her observations when they had lunch together, and in speaking with her regularly by telephone.[86] She thought that Mrs MH was 'definitely' able to make reasonable judgments about matters to do with her personal situation, and her personal care needs.[87] Given Ms JF's lack of any medical expertise, and our concerns that she sought to minimise her observations of any mental decline on Mrs MH's part, out of loyalty to Mrs MH, we do not accept this aspect of Ms JF's evidence.
[86] ts 25, 22 March 2022.
[87] ts 26, 22 March 2022.
Ms AH accepted that Mrs MH had a mild cognitive impairment. However, her evidence was that she had not noticed anything in her mother's behaviour that suggested that Mrs MH needed to be assessed to determine the extent of that impairment, or that suggested that Mrs MH was not personally capable of making her own decisions.[88] In questioning the purpose of a cognitive assessment for her mother, however, it appears that Ms AH's real concern was that:
I don't want her labelled. I don't want her sort of … pigeonholed into … a certain corner because of some number on a scale when … to my mind the most important gauge of everything is … how she's coping with her daily life and … the overall picture. And … she's coping extremely well.[89]
[88] ts 38, 22 March 2022.
[89] ts 39, 22 March 2022.
Ms AH filed written submissions on 17 March 2022. Amongst other things, Ms AH, in summary:
(a)submitted that there was no doubt that Mrs MH remained in possession of her decision-making capacity;
(b)contended that there was no basis for the opinion given by Dr DS, Dr NC, and Dr NF that Mrs MH had dementia, as no assessments of her capacity had been done;
(c)claimed that in January 2022, Mrs MH had participated, by telephone, in a pre-trial conference in the Magistrates Court in relation to a dispute concerning a unit in Perth which Mrs MH owned, and negotiated a settlement;
(d)accepted that Mrs MH had always been reluctant to throw things out and that that problem had been exacerbated in recent years, especially given restrictions on her mobility;
(e)submitted that it was entirely rational for Mrs MH to keep things that may be useful; and
(f)contended that disagreeing with a person's decisions was not a logical or lawful basis to question their decisionmaking ability.
We have already dealt with the substance of most of these submissions. As to the claim that Mrs MH had participated in a pre-trial hearing in the Magistrates Court, there was no evidence about that matter, apart from Ms AH's claim itself. We do not consider that that bare claim is sufficient to cast doubt on the medical evidence of Mrs MH's cognitive impairment.
As to Ms AH's submission that it was 'entirely rational' for Mrs MH to keep things that may be useful, we make the following observations. All humans accumulate and retain possessions. At the most basic level, such possessions may be those which assist survival. As a person's wealth increases, their ability to collect possessions for discretionary reasons - for pleasure, comfort, a sense of security, intellectual interest, as a demonstration of wealth, for investment purposes, or otherwise - also increases. Indeed, throughout history, accumulating collections of things - such as stamps, coins, books, shells, wine, jewellery, antiquities or art, to name but a few examples - has been fashionable. Accumulating possessions is hardly unusual human behaviour, nor, of itself, does it constitute any justification for criticism, ridicule or adverse judgment.
Relevantly to this case, nothing in the evidence we have heard suggests that the accumulation and retention of possessions, in and of itself, constitutes an indicia of cognitive decline. However, when the accumulation and retention of possessions reaches such an extent that a person's home environment becomes unusable, unsafe or unsanitary, or even perhaps uncomfortable (if there is nowhere to sit, or to sleep, because furniture and beds are covered in possessions), or is pursued to such an extent that their personal or financial wellbeing is neglected, or jeopardised, then that may raise concerns about a person's mental health, or their ability to make reasonable judgments about their personal care needs, or about financial matters. Indeed, the distinction between collecting things, and the excessive accumulation and retention of possessions and the consequences of this, was to some extent accepted by Ms AH when she described the Home situation as ‘hoarding’ on more than one occasion during the hearing.[90]
[90] See, for example, ts 36, 42, 43, 44, 22 March 2022.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
IH
Research Associate to the Honourable Justice Pritchard
25 AUGUST 2022