MW and SRB
[2011] WASAT 101
•5 JULY 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: MW and SRB [2011] WASAT 101
MEMBER: MS F CHILD (MEMBER)
HEARD: 11 MARCH 2011
DELIVERED : 5 JULY 2011
FILE NO/S: GAA 375 of 2011
BETWEEN: MW
Applicant
AND
SRB
Represented person
Catchwords:
Guardianship and administration Application for review of guardianship order Represented person with mild intellectual disability and chronic health problems Resident in a nursing home No known family Proposed appointment of a private guardian in substitution of the Public Advocate Conflict between the proposed guardian and the primary service provider Wishes of the represented person Continuing need for the appointment of the Public Advocate
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(2)(f), s 43, s 43(1)(b), s 43(1)(c), s 44, s 110ZD, s 110ZD(3)(c)(ii)
State Administrative Tribunal Act 2004 (WA), s 77
Result:
Public Advocate confirmed as limited guardian
Category: B
Representation:
Counsel:
Applicant: Self-represented
Represented person : N/A
Solicitors:
Applicant: Self-represented
Represented person : N/A
Case(s) referred to in decision(s):
LM and MM [2010] WASAT 110
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
On review of a guardianship order, the Tribunal confirmed the appointment of the Public Advocate as limited guardian for a woman with a mild intellectual disability who is resident in a nursing home.
A nurse, a former employee of the nursing home and friend of the woman, sought review of the guardianship order and proposed herself as the guardian in substitution of the Public Advocate.
The Tribunal accepted that the nurse was committed to the represented person and would act in her best interests if appointed the guardian but decided that the Public Advocate should be confirmed as the guardian because of the conflict between the proposed guardian and some staff and the proprietor of the nursing home where the represented person lives. The Tribunal found that the reported conflict between some senior staff and the nursing home proprietor and the proposed guardian might impact in a negative way on the represented person. The conflict and the represented person's own concerns about the proposed change of guardian were central to the decision to continue the appointment of the Public Advocate as guardian.
In the circumstances, it was not in the best interests of the represented person that the Public Advocate's appointment be revoked.
Current review
These reasons relate to a decision of the Tribunal on review of a guardianship order dated 25 June 2010 by which the Public Advocate was appointed limited guardian of the represented person with the functions to consent to any treatment or health care on her behalf and to determine the services to which the represented person should have access.
At the conclusion of the review the Public Advocate's appointment was confirmed as the limited guardian for a further period of 12 months.
The review of the guardianship order followed an application for leave to seek review of the order by MW, a former employee of the nursing home in which SRB (represented person) lives.
In support of her proposal for review of the order and for her appointment as guardian in substitution of the Public Advocate, MW states she has developed a supportive relationship with the represented person during the period of her employment at the nursing home. MW states she continues to provide support to the represented person since leaving the employment and now seeks her appointment as guardian to make medical decisions for the represented person. The Public Advocate's delegated guardian (guardian) supports the appointment of MW as guardian.
Leave was granted to seek review of the order on 4 February 2011 and the application for review was heard on 11 March 2011. MW and the guardian attended the hearing. Although she had attended previous hearings before the Tribunal the guardian reported that the represented person had said she did not wish to attend the hearing.
Following the hearing the decision was reserved. These written reasons of the decision of the Tribunal are produced pursuant to s 77 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
As with all written decisions of the Tribunal dealing with applications brought under the Guardianship and Administration Act 1990 (WA) (GA Act), information that might identify the represented person has been removed.
Background
The represented person is a woman of 60 years who has a mild intellectual disability and chronic health problems. She has lived at a nursing home for about two years. Prior to her admission to that facility she lived in her family home and was assisted by carers following the death of her father some years before. The represented person has no known family and prior to her entry to the nursing home was said to have been socially isolated with her only regular visitors being paid carers. The Public Advocate was first appointed her plenary guardian in 2008. That order was later varied on review to a limited order with the existing functions in 2010.
Legislation
In all proceedings before the Tribunal commenced under the GA Act, the Tribunal is directed to observe the principles set out in s 4 of the legislation. These principles provide that the primary concern of the Tribunal must be the best interests of the represented person, that every person shall be presumed to be capable of looking after their own health and safety, making reasonable judgments in respect of matters relating to their person, managing their own affairs and making reasonable judgments in respect of matters relating to their estate, until the contrary is proved to the satisfaction of the State Administrative Tribunal.
The principles include that orders should not be made if the needs of the person, could, in the opinion of the Tribunal, be met by means less restrictive of that person's freedom of decision and action. Any order made should be in terms that impose the least restriction possible in the circumstances on the person's freedom of decision and action.
In considering any matter under the GA Act, the Tribunal is bound to attempt to ascertain the wishes of the represented person as expressed or gathered from that person's previous actions.
To appoint a guardian, or on review of an order, the Tribunal must be satisfied that the represented person remains a person for whom an order may be made.
Section 43(1)(b) of the GA Act provides that to appoint a guardian the Tribunal must find that the person:
…
(b)is
(i)incapable of looking after [her] own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to [her] person; or
(iii)in need of oversight, care or control in the interests of [her] own health and safety or for the protection of others;
and
(c)is in need of a guardian,
…
Section 44 of the GA Act sets out who may be appointed as guardian:
(1)A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal
(a)will act in the best interests of the person in respect of whom the application is made;
(b)is not in a position where his interests conflict or may conflict with the interests of that person; and
(c)is otherwise suitable to act as the guardian of that person.
(2)For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b)the compatibility of the proposed appointee with that person and with the administrator (if any) of that person’s estate;
(c)the wishes of the person in respect of whom the application is made; and
(d)whether the proposed appointee will be able to perform the functions vested in him.
(3)Where a proposed appointee is a relative of the person in respect of whom the application is made, he shall not by virtue only of that fact be taken to be in a position where his interests conflict or may conflict with those of that person.
(4)The fact that a person is the administrator of the estate of a person does not disqualify him from being appointed as guardian of that person.
(5)Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.
Proposal for appointment of guardian
MW reports that she first met the represented person when the represented person was admitted to hospital from her home in early 2009. MW went to the hospital to assess her for admission to the nursing home where MW was then working as the clinical nurse. It was during this first meeting that MW states that she first felt responsible for the represented person because she felt that the represented person's care (at the hospital) was 'quite poor'.
MW states that since the represented person's admission to the nursing home she had made 'massive improvement' both in her health and in her selfesteem. MW reports that the represented person has lost a significant amount of weight and is no longer insulin dependent because of the proper management of her diabetes. MW describes the represented person as settled into a single room at the facility, which is 'set up with pictures of her parents and her important things around her'. MW states that the represented person has a 'great social life'; she has developed friendships, is involved with occupational therapy and diversional therapy, goes on outings to the hairdresser and her medical needs are addressed. She states that the represented person now has some quality of life and that she would 'hate to see this go backwards'.
MW says she has a good working relationship with both the Public Advocate as the represented person's guardian and with the Public Trustee who is appointed the administrator of the represented person's estate and trustee of a testamentary trust of her late father.
MW states that she had not been involved in a long running industrial dispute at the facility and left employment in the nursing home some four months prior to the review hearing. MW says she has seen the represented person since leaving the employment and has taken her on an outing to a medical specialist and shopping for underwear.
An email communication before the Tribunal, dated 3 March 2011, from the occupational therapist employed at the facility and sent to the guardian, is critical of MW. It states, in part:
[MW] displays a very persuasive and flammable personality which she has at times used to manipulate situations to effect the change or circumstances she desires.
[Nursing home] management feel that given the circumstances related to [MW] no longer being a [nursing home] employee and her frequently expressed dissatisfaction with facility management, [it] is contraindicated that she be appointed as a guardian to a present [nursing home] resident. Management wish to avoid the situation which could possibly arise where [represented person] may be used as a tool to assist [MW] to continue to have a relationship with the facility and gain internal access to facility information.
Furthermore, [nursing home] management anticipate that the health and well being of [represented person] may be used by [MW] to facilitate her own agenda of undermining [nursing home] aged care facility. It is understood that the options for a suitable guardian are limited, however, it is felt that [MW] is not a favourable option and it is felt that [represented person]'s guardian should remain unchanged at present. (T:8, 11.03.11)
In response to the letter, MW says that some of the nursing home staff and the proprietor are 'pretty antagonistic' towards her (T:5, 11.03.11). She attributes the antagonism to a letter she wrote to the proprietor three weeks after she left the employment at the facility which was to communicate concerns directly to him. MW read out her letter during the hearing and it refers to alleged deterioration in care of residents at the facility and allegations of 'bullying' of staff.
In support of her appointment, MW states that she has a good working relationship with the nurses at the facility and submits that she could consult with them when dealing with the represented person's care issues.
The guardian takes issue with the views expressed by the occupational therapist and states that these views should have come from the facility manager or director of nursing. The guardian confirms that she had a telephone conversation with the proprietor of the facility who she reports is 'concerned that the represented person would be used as a pawn’ by MW 'because she had issues with management' (T:11, 11.03.11).
The guardian reports that it is alleged that MW entered the facility after she had left the employment and had 'gone through resident's files, and had just walked in as if she owned the place' (T:12, 11.03.11). MW strongly denies this allegation. Later in the hearing MW stated that the proprietor of the nursing home 'could take a restraining order out on me' because they consider her a 'threat' to them (T:16, 11.03.11).
The guardian submits that the conflict between MW and the facility is an industrial matter and that members of the nursing home staff are 'using the [represented person] against [MW]' (T:12, 11.03.11).
The guardian reports that in her experience MW has always acted professionally in her dealings with her and with the Public Trustee and has a working relationship with the represented person's general practitioner. She submits that MW is 'professional enough to be able to put [the conflict] aside' but questions whether management would be able to do this and said she 'could not speak on their behalf' (T:13, 11.03.11). The guardian submits that MW is still the best person for appointment as guardian of the represented person.
Wishes of the represented person
In the same email communication from the occupational therapist addressed to the guardian referred to above, the following statement is made:
The [represented person] … displayed some reservation to [MW] being appointed her guardian. The [represented person] expressed concern that other facility staff familiar with [MW] are providing her unnecessary information related to the [represented person], which limits her privacy. (T:7, 11.03.11)
MW said she did not understand this comment. In response to the reported reservations expressed by the represented person to the appointment of MW, the guardian said that her interpretation (of the represented person's reservations about MW's appointment) was that the represented person required assertive care on her entry to the nursing home as she was 'noncompliant', had had poor care for some time, was unable to walk and was bed bound, and had 'given up on life'. The guardian understood that as a result the represented person found MW 'bossy in the beginning' but that 'she had improved'. There was also apparently confusion on the part of the represented person about the role of the guardian, as distinct from that of the Public Trustee, as the administrator of her estate.
The guardian reports that she advised the represented person that if she was dissatisfied with MW as her guardian she could 'talk to staff about it and they can go back to the Tribunal and get another guardian' and the represented person had said 'that would be okay, then' (T:11, 11.03.11).
Findings and decision
Capacity s 43 of the GA Act
The medical evidence from the represented person's general practitioner is that she is not able to make decisions about her personal health care.
There is also no challenge to the view that the represented person needs oversight of her health care and is dependent on others in relation to most aspects of her activities of daily living including the management of her diabetes and her diet and management of her skin condition. The Tribunal finds that all of the paragraphs in s 43(1)(b) apply to the represented person.
Need s 43(1)(c) of the GA Act
As the represented person has no family or friends, other than those whom she has met through her residence at the nursing home, she is in need of a guardian as there is no one who can provide consent to medical treatment informally on her behalf. There is no one who fits easily into the hierarchy of persons who might found in s 110ZD of the GA Act. Paid carers cannot fulfil this role (s 110ZD(3)(c)(ii)). As such, there is no less restrictive means by which the represented person's need for consent to medical treatment can be met other than the appointment of a guardian with this authority.
Another issue confronting the represented person is that without a guardian there is no one who can advocate for her, or consent to the services which may be purchased for her, in addition to those that are provided at the care facility. Notably, the proposal for the appointment of MW was limited to the authority to consent to treatment. However, the order under review includes the function to consent to services on the represented person's behalf and this function will be included in the order made on review. Although as a resident in a care facility the represented person's basic needs are met through the services provided, she does have financial resources managed by the Public Trustee which might be applied to improve her access to the community or engage other services to improve her quality of life. A guardian who is independent of the facility should have authority to determine those matters.
The need for the continuing appointment of a guardian was not in issue in the hearing. The real question before the Tribunal on review is who should be appointed as guardian of the represented person, as MW proposes herself in substitution of the Public Advocate.
Appointment of a guardian - s 44 of the GA Act
In respect of s 44(1)(a) of the GA Act the Tribunal accepts that, if appointed, MW would act in the best interests of the represented person.
In respect of s 44(1)(b) of the GA Act, the reported assertions of the proprietor and the occupational therapist that the represented person might be used as 'pawn' or a 'tool' by MW is not supported by any evidence and little weight can be given to them. No one from the nursing home attended the hearing to give any evidence on the point or to make any submissions. What can be taken from these assertions, however, together with the comment of the guardian that the represented person is being 'used by the nursing home against MW', is the current level of distrust and conflict between MW and the primary carer of the represented person.
That MW is no longer an employee is not a 'contraindication' to her appointment as guardian, as suggested in the letter from the occupational therapist, since a current employee of the nursing home could not be appointed as the guardian for the represented person as this may give rise to a potential conflict referred to in s 44(1)(b) of the GA Act.
In respect of whether MW is 'otherwise suitable to act as guardian' pursuant to s 44(1)(c) of the GA Act, guidance is set out in s 44(2) of the Act, the factors of which the Tribunal must take into account as far as possible in determining the suitability of a person for appointment as a guardian.
The considerations of preserving family relationships identified in s 44(2)(a) of the GA Act do not arise because the represented person has no known family. However, the staff at the primary service provider (the nursing home) who have responsibility for her day to day care, are of great significance in the life of the represented person. Consideration must be given to the possible impact on the represented person, and on relationships at the facility, of the conflict between MW, the nursing home proprietor and some senior staff.
In respect of s 44(2)(b) of the GA Act, regarding the compatibility of MW with the represented person and the appointed administrator, it is clear that MW has developed a relationship with the represented person and is genuinely interested in her welfare. MW also is reported to have a good working relationship with the Public Trustee.
In respect of the wishes of the represented person pursuant to s 44(2)(c) of the GA Act, the reported concerns expressed by the represented person regarding the appointment of MW as her guardian, in my view, have not been given sufficient consideration in the submissions made for the appointment of MW as the guardian. This aspect was not fully explored in the hearing because the represented person did not attend, having discussed this with the guardian. To the extent they have been communicated, the wishes of the represented person appear to be that she did not initially want MW as her guardian. The represented person expressed concern about a change of guardianship in the presence of her guardian and is, from all the medical and other evidence before the Tribunal, a vulnerable and dependent person. Therefore, the reassurance that the represented person could speak to staff and seek review of the appointment of MW as guardian is not satisfactory, especially given the existing conflict between MW and the nursing home staff. This matter requires further exploration. As it is, the Tribunal must find that the represented person is concerned, or at least ambivalent about the appointment of MW as the guardian, and her wishes, however expressed, must be ascertained and considered by the Tribunal (s 4(2)(f) of the GA Act).
In the circumstances of the reported conflict between MW and the nursing home staff, the question must be asked whether MW will be able to perform the functions as guardian for the represented person pursuant to s 44(2)(d) of the GA Act. A guardian with the authorities in the existing order would need to work closely with the primary carer and the health care professionals involved in her care. At the present time there does not appear to be a working relationship between MW and key staff and the proprietor of the nursing home.
Whatever the reason for the breakdown in the relationships between MW and her former employer and some staff at the facility, there is no doubt that there is animosity from some at the nursing home directed towards MW. This is clear from the letter and the comments of the proprietor reported by the guardian. Although it is accepted that MW has a working relationship with other staff at the nursing home, the suggestion that a restraining order might be taken out against her because she is considered a 'threat' is of significant concern.
The Tribunal has dealt with applications from nursing homes in the past where relationships have broken down with family members and the Tribunal is asked to revoke the appointment of a family member as guardian see, for example, LM and MM [2010] WASAT 110 at [29].
In that case, the Public Advocate's representative submitted that the relationship between the daughter/guardian and the nursing home where her mother was a resident was not able to be sustained and she was not able to carry out her duties as guardian. The appointment of the Public Advocate as guardian of last resort was proposed.
I accept that MW is personally well qualified to make health care decisions for the represented person as she is a trained nurse with many years' experience in aged and residential care. The represented person would benefit from strong advocacy and the personal relationship she might develop with MW as her guardian, as MW appears committed to the represented person's longterm interests, in particular in relation to her health care. However, the impracticality of appointing a guardian for the represented person who is already in conflict with her primary service provider seems obvious since it places a vulnerable person at the centre of the conflict. This means that at this time MW cannot be appointed as the guardian as it is not in the best interests of the represented person that she be placed in this position.
I considered whether MW might be appointed jointly with the Public Advocate as guardian, but from what I understand to be the present wish of the represented person, this is not appropriate at this time. With further exploration as to the wishes of the represented person this may become an option in the future. With clarification of the represented person's views and should there be an improvement and development of a working relationship between MW and the nursing home staff, a change of guardian in the future might be possible.
Order
The order is confirmed as follows:
1.The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia be appointed limited guardian of the represented person with the following functions:
(a)To determine the services to which the represented person should have access; and
(b)Subject to Division 3 Part 5 of the Guardianship and Administration Act 1990, to make treatment decisions for the represented person.
2.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.
3.This order is to be reviewed by 20 June 2012.
I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER
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