PB and HDB

[2009] WASAT 8

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   PB and HDB [2009] WASAT 8

MEMBER:   JUSTICE M L BARKER (PRESIDENT)

MS J TOOHEY (SENIOR MEMBER)
MR J MANSVELD (MEMBER)

HEARD:   EDITED REASONS DELIVERED ORALLY ON 24 NOVEMBER 2008

DELIVERED          :   21 JANUARY 2009

FILE NO/S:   GAA 2358 of 2008

GAA 2368 of 2008
GAA 2369 of 2008

BETWEEN:   PB

Applicant

AND

HDB
Represented Person

Catchwords:

Guardianship and Administration - Review of guardianship order - Review by a full Tribunal - Public Advocate re-appointed as guardian - Guardian given plenary powers

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 17A, s 43(1), s 44, s 65, s 86, s 87
State Administrative Tribunal Act 2004 (WA), s 77

Result:

The Public Advocate appointed plenary guardian

Category:    B

Representation:

Counsel:

Applicant:     Nil

Represented Person       :     Nil

Solicitors:

Applicant:     N/A

Represented Person       :     N/A

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The Public Advocate had been appointed the limited guardian for HDB, an 82 year old woman who was an inpatient at a psycho-geriatric hospital.

2. HDB had three sons, PB, KB and PD, and there was no clear agreement between them about where she should live.

3. The original application for guardianship had been made by KB as he was of the view that PB, who was caring for HDB, was not doing so in her best interests.

4. The Public Advocate had sought review of the guardianship order on a number of occasions because the actions of PB had necessitated additional authority being given to the guardian, including the decision about whether she should travel overseas and also to ensure that she was admitted to hospital for medical and capacity assessments.

5. At a review hearing held on 3 October 2008, the Public Advocate was appointed guardian for HDB with the functions of deciding where she should live, to consent to her treatment and health care, to determine the contact she should have with others, to determine the services and domestic supports to which she should have access and to decide whether she should travel outside of Western Australia (with attendant authority to hold her passport and to liaise with relevant authorities).

6. PB sought a review of that decision pursuant to s 17A of the Guardianship and Administration Act 1990 (WA).

7. The Public Trustee had previously been given the authority to manage the estate of HDB and PB did not seek review of that decision.

8. The Tribunal decided to reappoint the Public Advocate as the guardian for HDB.

9. The Tribunal found that a plenary order was necessary to meet the current needs of HDB and to ensure that decisions could be made with the requisite certainty and promptness given that it was not in HDB's best interests to remain in the psycho-geriatric facility for any longer than her medical needs demanded.

10. The appointment of the Public Advocate was supported by KB and PD.  PB did not propose himself as guardian and therefore could not be considered but even had he proposed himself the Tribunal would not have been satisfied, because of his past actions, that he would make decisions in HDB's best interests.

Background

1. These reasons relate to an application under s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act) in respect of HDB.

2. Section 17A of the GA Act allows a party, who is aggrieved by a determination by the Tribunal constituted by a single member, to seek a review of that determination by a Full Tribunal. A Full Tribunal is the Tribunal constituted by the President or a Deputy President and two other members: s 3 of the GA Act.

3. In this case the Tribunal is constituted by the President and two other members.

4. The review of a determination by a Full Tribunal is a de novo review which means that the determination of the single member is heard anew.

5. HDB is an 82 year old woman, currently an inpatient at a psycho geriatric hospital.

6. The application has been made by PB a son of HDB.  HDB has two other sons, KB and PD.

7. The determination of which PB is seeking a review is the one made by the Tribunal on 3 October 2008 appointing the Public Advocate as HDB's limited guardian with the following functions:

   •To decide where HDB is to live whether permanently or temporarily and to decide with whom she is to live;

   •To consent to any treatment or health care, including any assessments, of HDB (subject to Division 3 of Part 5 of the GA Act which deals with the matter of sterilization);

   •To determine what contact, if any, HDB should have with others and the extent of that contact;

   •To determine the services and domestic supports to which HDB should have access;

   •To consent to the use of chemical or physical restraints in respect of HDB and to decide matters incidental thereto;

   •To take possession of any valid passports issued to HDB;

   •To decide whether or not HDB is to travel out of Western Australia, and if so, upon what conditions; and

   •To liaise with the Public Trustee, any airline or other transport organisation and such other state, federal or consular (or similar) authorities as required in order to facilitate and give effect to decisions made under the order.

8. PB has also applied for leave to apply for review, and for review of, the guardianship order made on 3 October 2008 pursuant to s 87 and s 86 of the GA Act, but these are effectively subsumed in the review under s 17A.

9. The application was heard on 24 November 2008 and was attended by PB, PD, KB (legally represented), YH (Clinical Nurse Specialist), a representative of the Public Advocate and a representative of the Public Trustee.

10. HDB was scheduled to attend the hearing by video link from hospital (with YH) but the Tribunal was informed that she had become very agitated and it was the medical team's assessment that it was not in her best interests to be present.

Previous proceedings and orders made in respect of HDB

1. The circumstances of HDB first came to the attention of the Tribunal upon the applications for guardianship and administration made by KB in April 2008.

2. On 11 June 2008, the Tribunal appointed the Public Advocate as HDB's limited guardian to consent to her treatment and health care; to take all reasonable steps to have an up-to-date specialist medical assessment undertaken for her as soon as possible; to determine the contact, if any, she should have with others and the extent of that contact and to determine the services and domestic supports to which she should have access.

3. Also on 11 June 2008, the Tribunal made an order under s 65 of the GA Act authorising the Public Trustee to exercise the functions of a plenary administrator of all of the estate of HDB. The Public Trustee was further directed and authorised to ascertain the extent of HDB's estate, to secure the estate and to set up suitable interim arrangements for the meeting of HDB's domestic expenses, care costs and other maintenance and for the payment of any other financial commitments that HDB had including any obligations she had taken upon herself to contribute towards the support of any other person.

4. The Tribunal is empowered to make an order under s 65 of the GA Act where it appears to the Tribunal that a person may be a person in respect of whom a declaration should be made that he or she is in need of an administrator (and pending the determination of that question) it is necessary to make immediate provision for the protection of the person's estate.

5. The orders made on 11 June 2008 were set for review in three months.

6. In August 2008 the Public Advocate sought review of the guardianship order under s 86 of the GA Act. In that application the Public Advocate stated that she had to date been unsuccessful in making contact with HDB to arrange a medical assessment and that she had been advised by the Public Trustee that HDB had been booked to travel overseas with PB and it was unclear whether she was fit to travel. The Public Advocate proposed that her authority be increased to deal with this matter.

7. On 11 August 2008, the Tribunal made an order the effect of which was to add to the guardianship order made on 11 June 2008, the function of deciding whether or not HDB should travel out of WA and, if so, under what conditions.  The Public Advocate was given authority attendant with this function to hold HDB's passport and to liaise with the relevant authorities including the Public Trustee.

8. On 3 September 2008 the Tribunal confirmed the order under s 65 of the GA Act and adjourned the hearing for the application for an administration order to 4 March 2009.

9. The Public Advocate made a further application for review of the guardianship order in October 2008 in response to the son PB discharging his mother from hospital without the permission of the guardian.  The Public Advocate had to involve the police to access HDB and have her re-admitted to hospital.  HDB was said to be very agitated by the experience and was being prescribed medication to manage that agitation.

10. The Public Advocate proposed that her guardianship authority be increased to include the decision about where and with whom HDB should live and to consent to the use of chemical or physical restraint (to manage the agitation suffered by her).

11. On 3 October 2008 the Tribunal increased the functions of the guardian as proposed by the Public Advocate and also removed the particular direction in the order of 11 August 2008 to arrange for a medical assessment.  It would appear that the Tribunal was of the view that the direction was dealt with by the authority to consent to HDB's treatment and health care.

The relevant legislation

1. Before the Tribunal can consider the appointment of a guardian for HDB it has to be satisfied that she is either incapable of looking after her own health and safety; 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: s 43 (1)(b) of the GA Act.

2. If that is established then the Tribunal has to further determine whether HDB is in need of a guardian: s 43(1)(c) of the GA Act.

3. In its deliberations the Tribunal has to observe the principles set out in s 4(2) of the GA Act. These state that the primary concern of the Tribunal is the best interests of the person; that every person is presumed capable until the contrary is proved to the satisfaction of the Tribunal; that a guardianship (or administration) order shall not be made if the needs of the person can be met by other means less restrictive of the person's freedom of decision and action; that as far as is possible the views and wishes of the person shall be considered; that a plenary guardian shall not be appointed if the appointment of a limited guardian will be sufficient to meet the needs of the person and that any order made shall be in terms that impose the least restrictions on the person's freedom of decision and action.

The question of HDB's capacity

1. When the first order for guardianship was made by the Tribunal on 11 June 2008, it was determined on the evidence of her living situation that HDB was in need of oversight care and control in the interests of her own health and safety: s 43(1)(b)(iii) of the GA Act.  At that time the Tribunal had the reports of two general practitioners who had not seen HDB for 12 months.  One of the doctors assessed her as having some memory problems and had referred her to an aged care assessment team for assessment of her care needs; a referral she appeared not to have followed through.

2. For the purposes of this review hearing the Tribunal has the benefit of an assessment conducted by the aged care assessment team (which includes a specialist practitioner) whilst HDB has been in hospital. 

3. HDB has been diagnosed with Alzheimer's dementia.  She is reported to always exhibit short term memory problems, confusion and disorientation to time, place and people.  She regularly exhibits long term memory problems, hallucinations and delusions.  She is at risk of wandering and considered an absconding risk.  Her dementia is reported to be at the advanced stage and she lacks insight into her care needs.

4. YH, the clinical nurse specialist, submits that HDB has been assessed as requiring full time, secure care.  Her short term memory problems means that she fails to recognise staff within 10 minutes of having seen them.  She needs a highly structured environment otherwise she will become very agitated.  She would be at risk if she returned to her home because of her wandering behaviour and the fact that she would not be able to find her way home should she leave.  She has attempted to leave the hospital.

5. There is no dispute that HDB is a person who should have a guardian appointed.  The Tribunal finds, on the evidence, that HDB is incapable of looking after her own health and safety, is unable to make reasonable judgments in respect of matters relating to her person and is in need of oversight, care and control in the interests of her own health and safety. 

The hearing for review

1. Despite repeated opportunities to give evidence at the hearing, PB declined to offer any comment and as a consequence the Tribunal has had to rely upon his application and his other written material.

2. In his application, PB submits that the guardianship order should be revoked.  He states that HDB is being chemically restrained in hospital and that he and other relatives and friends are being prevented from having contact with her.

3. In written submissions PB states HDB is being 'detained' in Perth (in the psycho-geriatric facility) and that she belongs in her home in town, A (regional Western Australia).  He submits that the Tribunal and the Public Advocate (as HDB's appointed guardian) have acted on the false accusations that HDB has been socially isolated and is at high risk.  He states that he has lived with HDB for five years since the death of his father (HDB's spouse).

4. PB states that the guardian has never visited HDB's property in A and that she has not been assessed in her home environment.

5. PB also states that recently HDB was forcibly (re) admitted to hospital by her guardian and that an assessment of her capacity (Mini Mental State Examination) was conducted without an interpreter.  He states that the result of that assessment was used by his brother KB to have HDB removed as a director of a family company.

6. PB describes HDB as socially outgoing, self opinionated, free willed and not easily led.  He states that she has a safe home environment in A (although he acknowledges that because she is socially active there is a 'safety factor') and that there has been a long documented history of him providing care for HDB by the building of a home for his parents, maintaining the house and surrounds and helping with household tasks.

7. Both KB and PD the other sons of HDB, support the continuation of the appointment of the Public Advocate as her guardian but have differing views about where she should live.

8. PD says that HDB wants to return to A and that she is currently agitated because she cannot understand why she is in hospital.  She constantly asks for PB.

9. PD submits that in his view the options for HDB are for her to return to her home in A with paid care or to receive care in a nursing home in A.  A return to A would mean a return to familiar surroundings and friends.

10. PD says that HDB and the family emigrated from Europe to Australia in 1956 and settled in A.  HDB moved to Perth in the 1960's but returned to A about 10 years ago.  HDB loves the outdoors and has a strong connection to A.  He believes that PB also wants HDB to return to A and could assist her there, although strict guidelines on the care arrangements would need to be set for him.

11. KB disagrees. He states that HDB has spent more time in Perth than A, her sons are in Perth and she has more friends there than in A.  He submits that she should not return to her home in A where she has been socially isolated and abused.

12. The Tribunal has received a number of written submissions from friends and acquaintances of HDB.  The sentiments of these submissions are expressed in the following way: 

    •HDB and PB should live in the house in A with assistance for HDB and boundaries set for PB as to what he can do.

    •HDB has deteriorated physically and mentally since being isolated from friends and family and her familiar surroundings and after the ordeal of forced hospitalisation and assessment.

    •HDB has expressed her overriding concern to return to A.  Her house is set up to receive foreign language TV which she enjoys.

    •PB should be appointed guardian not KB.

    •PB should be supported in bringing his mother back to A.

    •HDB's life has been marked by highs and lows but the constants have been her family, friends, travel and her love of A.

    •HDB could be in the care of PB but if that is not possible because of her care needs then she should live in an aged care facility in A.

    •HDB's family have been so intent on their own wants and quarrels with one another that they have forgotten her needs.

    •PB has made mistakes but he is dedicated to looking after HDB and has done a good job.

The Public Advocate's submissions

1. In her written submissions to the Tribunal, the Public Advocate sets out a brief history of her actions under the various guardianship orders.

2. She states that she made many attempts between June and October 2008 to make contact with HDB through PB but without success. 

3. In September 2008, the Public Advocate decided that HDB should not travel to Europe with PB out of a concern for her fitness to travel.

4. In early October 2008, with the assistance of the police, the Public Advocate finally gained physical access to HDB and had her admitted to hospital for medical and capacity assessments.  A day after admission HDB was discharged from hospital with the assistance of PB but without the permission of the Public Advocate.

5. Shortly thereafter, again with the assistance of the police, the Public Advocate obtained access to HDB and had her readmitted to hospital.  At that time HDB had become increasingly agitated and distressed and the possibility was raised of having to treat her agitation with medication.

6. At the end of October 2008, HDB was transferred to the psycho-geriatric ward of another hospital as she could not be adequately managed in the then hospital because of her behavioural difficulties.  After admission she was assessed in respect of her capacity and care needs.  It was determined that she had a cognitive impairment having scored 15/30 in a Mini Mental State Examination.  The assessment was conducted with an interpreter.  She was further assessed as requiring high level, dementia specific care.

7. The Public Advocate has made arrangements with KB, PD and some family friends as to their contact with HDB whilst she is in hospital.  PB has not negotiated any contact which the guardian has determined should be supervised.  PD has offered to undertake the supervisory role.

8. The Public Advocate submits that she should remain as HDB's guardian with the following functions:

   •Treatment and health care, as she has been diagnosed as having a heart condition and dementia;

   •Contact with others to ensure her safety, security and mental well-being;

   •Consent to the use of chemical or physical restraints to manage her high levels of agitation; and

   •To decide whether she should travel outside of the State and to that end to take possession of any valid passports and to liaise with any relevant agency including the Public Trustee, as the manager of her estate.

9. The Public Advocate does not see a need for HDB to continue to have decisions made for her in respect to services and domestic supports as she has been recommended for high level, dementia specific accommodation.

Findings and reasons

1. The Tribunal accepts that HDB is in ongoing need of a guardian.  She is currently hospitalised, is in a highly agitated state and is vulnerable.  The primary decision to be made is that of deciding where she is to live and there is no clear agreement between her sons as to what is in her best interests.

2. The weight of evidence, including what she has reportedly told people in the past and presently (to the extent that she can) satisfies the Tribunal that HDB wishes to return to live in A rather then live in Perth.

3. Since the appointment of the Public Advocate as HDB's limited guardian, the relationship between her sons has complicated the decision­making process.  The actions of PB, in particular, has necessitated a number of reviews before the Tribunal to extend the authority of the guardianship order as new circumstances have arisen.  This, in the view of the Tribunal, is indicative of the currently unsettled nature of HDB's life and demonstrates the need for an appointed guardian to have sufficient authority to meet any unexpected situation that might impede (as has already occurred) decisions being made in her best interests.

4. The Tribunal finds that a plenary order is necessary to meet the current needs of HDB and to ensure that decisions, including those described by the Public Advocate, can be made with the requisite certainty and promptness given that it is not in HDB's best interests to remain in the psycho-geriatric facility for any longer than her medical needs demand.

5. KB and PD support the ongoing appointment of the Public Advocate as the guardian for HDB.  PB submits that the order should be revoked but otherwise does not state who should be appointed guardian.  It is difficult to ascertain the wishes of HDB other than from the evidence that she has been asking for PB whilst she has been in the psycho-geriatric facility and the fact that PB has played an important role in caring for her in recent years.

6. There are friends and acquaintances of HDB who propose that PB be appointed her guardian.

7. PB does not propose himself as guardian and therefore cannot be considered (s 44(1) of the GA Act) but even had he proposed himself the Tribunal could not be satisfied, because of his past actions, that he would make decisions in HDB's best interests.

8. The Tribunal has therefore decided to reappoint the Public Advocate as the guardian for HDB (s 44(5) of the GA Act) and to give her plenary authority.  The order is made for 12 months in the expectation that the significant decisions for HDB will be made in that time and the ongoing need for a guardian can be reviewed at the expiration of the term of the order.

9. The applications for review made by PB pursuant to s 87 and s 86 of the GA Act are dismissed.

Order

(1)The guardianship order of 3 October 2008 be revoked and a guardianship order in the following terms be substituted for it:

a)The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia be appointed plenary guardian of 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 in the Office of the Public Advocate.

(3)This order is to be reviewed by 24 November 2009.

(4)The applications under s 87 and s 86 of the Guardianship and Administration Act 1990 (WA) for leave to apply for review, and for review of, the order made on 3 October 2008 are dismissed.

I certify that this and the preceding [69] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUSTICE M L BARKER, PRESIDENT