PC - [2011] WASAT 72 | CaseChat AU

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: PC [2011] WASAT 72

MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
MS D TAYLOR (SENIOR MEMBER)
DR A GARTON (SENIOR SESSIONAL MEMBER)

HEARD: 20 JANUARY 2011

DELIVERED : 3 MAY 2011

FILE NO/S: GAA 2707 of 2010

BETWEEN: IFC
Applicant
AND
PC
Represented Person
SMF
Friend

Catchwords:

Guardianship - Limited function - Independent appointment - Deciding with whom the represented person is to associate - Issues gleaned from past conduct

Legislation:

Family Law Act 1975 (Cth)
Guardianship and Administration Act 1990 (WA), s 4, s 17A, s 43, s 44, s 45, s 46, s 110ZD

Result:

Public Advocate appointed limited guardian

Category: B

Representation:

Counsel:

Applicant:     Mr P Mugliston
Represented Person       :     N/A
Friend:     Ms S Armstrong

Solicitors:

Applicant:     Brook Legal and Settlement Services
Represented Person       :     N/A
Friend:     Taylor Smart

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

Kevin and Another v AttorneyGeneral (Commonwealth) (2001) 165 FLR 404

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant, IFC, applied to the Full Tribunal under s 17A the Guardianship and Administration Act 1990 (WA) for a review of the decision made by a single member of the Tribunal on 6 August 2010 to appoint the Public Advocate limited guardian for PC with the function of determining what contact, if any, she should have with others and the extent of that contact. The applicant was aggrieved by the decision made by the member, not least because the Public Advocate in her capacity as limited guardian for PC, had permitted SMF, a longstanding family friend, to visit PC on a regular basis. This was against the wishes of IFC and his children. IFC believed that it would also be against the wishes of PC. The applicant proposed that he be appointed guardian.
There is no dispute that PC was a person for whom an order appointing a guardian could be made. No issue was taken with the member's findings regarding PC's lack of capacity to make reasonable decisions for herself, due to her dementia. The single area of dispute concerned the member's decision to appoint the Public Advocate as PC's guardian with authority to determine what contact, if any, PC should have with others. In substance, this related to whether or not SMF should be permitted to visit PC in the nursing home where she now resides permanently, and if so, upon what terms and conditions, if any, those visits should take place.
The Tribunal considered the application afresh and determined that an order appointing the Public Advocate limited guardian with the authority to consent to what contact, if any, PC should have with others, and the terms and conditions of that contact, was in her best interests.

Background

On 15 June 2010, IFC applied to the Tribunal for the appointment of a guardian and an administrator for his wife, PC. He indicated that PC was suffering from dementia and loss of memory. He said that due to PC's memory loss, she was unable to make any decisions or to think clearly. He provided details of PC's assets, her treating medical professionals, and relatives and persons he regarded as being interested in the application. The Tribunal was provided with a copy of a medical report from Dr C, consultant physician, dated 15 June 2010, that confirmed that PC suffered from a number of ailments, including Alzheimer's disease.
On 19 July 2010, PC's daughter, RR, wrote to the Tribunal indicating that a disagreement had arisen between PC's family members and a family friend of longstanding, SMF. In the period leading up to PC's admission to hospital, in June 2010, the family members had asked SMF to limit the number of his evening visits to the household. According to RR, these requests had been ignored and as a result, a breakdown in the relationship between the family members and SMF had occurred. The issues between them had appeared to come to a head when PC was transferred from the hospital to which she was originally admitted to another facility. The family decided to keep PC's whereabouts a secret and to that end, SMF was denied any information about PC and where she was residing.
As a result, SMF contacted and visited a number of PC's relatives and friends of her generation. He indicated that he wanted to make contact with PC because the nature and extent of their friendship had, for many years, extended beyond that of mere family friends. RR reported that PC's relatives and family friends were distressed and outraged by SMF's suggestions about the nature and extent of his relationship with PC, as indeed was she and her siblings and her father.
SMF located PC and went to visit her. He was refused entry by the facility, acting on the family's instructions.
On 20 July 2010, EK, a social worker at Osborne Park Hospital, completed a Primary Carer and Social Worker Guide (PCSW Guide) concerning PC at the request of the Tribunal. The information provided in the PCSW Guide indicated that PC had lived at home with her husband prior to her admission to hospital on 5 June 2010 following a fall and seizure. It noted that there was a dispute between members of PC’s family and SMF, and that PC had become more agitated and begged to go home following SMF's visits, during which he was heard to tell PC that she did not need to be in hospital and could go home. EK indicated that the hospital had suppressed information regarding PC's discharge destination at the request of the family so as to frustrate SMF's attempts to visit PC. EK indicated that PC's mental state was consistent with her diagnosis of Alzheimer's dementia, that she was always confused on the ward whilst in hospital and that she lacked insight into her needs for permanent supportive care. In addition, EK noted that PC's thinking was quite concrete and that she had been known to be verbally aggressive and argumentative with her husband. She noted that PC was very suspicious of her husband, that she had forgotten who he is and that she was regularly disoriented in time, place and person.
On 27 July 2010, the Tribunal received a letter from SMF asking to be accepted as a person of interest at the hearing of the application for guardianship of PC on 6 August 2010. He indicated that he wished to be considered to be appointed as guardian for PC on the basis that they had a 'close and intermate [sic]' relationship and that he was willing to make the sacrifices necessary to ensure her wellbeing and happiness. He corroborated the information given to the Tribunal by RR and confirmed that his visits to PC in hospital had been disrupted as a result of intervention by the family. He believed that PC would be distressed by not seeing him given their longstanding and enduring relationship. SMF provided the Tribunal with a number of statements from third parties confirming SMF's and PC's attendance at social functions together over a number of years.
On 2 August 2010, DW, of Brightwater Biralee, the aged care facility at which PC was, by that time, residing, prepared a further Primary Care and Social Work Guide at the request of the Tribunal. DW noted that IFC appeared to be 'supportive and genuinely concerned for his wife'. However, she went on to say that IFC did 'specifically request that a friend of the family be restricted from allowing to visit [PC] as there was some conflict, creating an anxiety and unsettling [PC]. This was witnessed while [PC] was at hospital but not here'. DW noted that PC was confused most of time, unable to follow more than one instruction at a time, unable to retain information and lacked insight into her condition.
The matter came before Member Gillett on 6 August 2010. By that time, the Tribunal had been put on notice that there was a serious dispute as to whether or not it was in PC's best interests for SMF to visit her. At the hearing, SMF submitted a copy of a letter he had written to RR in which he confirmed his willingness to look after PC rather than see her in an institution. He provided details of the living arrangements he could offer and indicated that he was willing to completely change his lifestyle to suit PC's needs. Member Gillett made no findings as to the precise nature of the relationship between PC and SMF. It was not necessary for her to do so because it was common ground between the parties that the friendship between PC and SMF had been both significant and longstanding.
The family's position, in essence, was that PC's circumstances had changed radically as a result of the onset of her illness and the decline in her mental health and wellbeing. The family was therefore firmly of the view that it was not in PC's best interests for her to be visited by SMF, particularly in view of his undermining of the plans for her permanent accommodation in an aged care facility. In addition, they believed that PC would have severed the relationship with SMF herself if she was able to do so, in view of his revelations about the purported nature of their private life together.
SMF, on the other hand, believed that it was in PC's best interests for him to be permitted to visit her and that she would be distressed by not seeing him.
At the conclusion of the hearing on 6 August 2010, Member Gillett determined that PC was in need of a guardian and made the following order:
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 function:
(a)To determine what contact, if any, the represented person should have with others and the extent of that contact.
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 6 August 2011.
On 9 November 2010, IFC applied to the Tribunal under s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act) for a review of Member Gillett's determination. He proposed that he be appointed guardian.
It should be noted that Member Gillett also on 6 August 2010 made an order appointing IFC the plenary administrator of PC's estate, but that order is not the subject of IFC's application for review.

Principles to be observed

Under s 4 of the GA Act, the Tribunal must observe the following principles:
•Its primary concern must be the best interests of the person concerned.
•Every person is presumed to be capable of looking after their own health and safety and making reasonable judgments about matters relating to their person.
•A guardianship order may not be made where there is an alternative means of meeting a person's needs that is less restrictive of their freedom of decision and action.
•Where an order is made, it must be in terms that impose the least restrictions on the person's freedom of decision and action.
•The Tribunal must seek to ascertain, as far as possible, the views and wishes of the person concerned.

The legal framework

Section 43 of the GA Act provides for the appointment of a guardian for a person who is, among other things, no longer able to make reasonable decisions in respect of matters relating to his person and is in need of a guardian.
Section 44 of the GA Act requires the Tribunal to determine, among other things, that any person proposing that they be appointed a person's guardian will act in the best interests of that person and is otherwise suitable to act.

The hearing of the review

By the time of the hearing before the Full Tribunal on 20 January 2011, both IFC and SMF had filed written submissions and statements setting out their positions. Both IFC and SMF were legally represented at the hearing.
No issue was taken by the applicant with Member Gillett's findings as to PC's lack of capacity to make reasonable decisions for herself regarding matters affecting her lifestyle.
The Public Advocate had filed a short report dated 8 November 2010 outlining the decisions taken by the delegated guardian concerning contact between PC and SMF since the making of the original order on 6 August 2010. She indicated that the staff at the aged care facility where PC resided had reported that she was happy to see SMF when he visited. She noted that SMF’s visits took place in the reception area because the family had asked that SMF not be permitted access to PC’s room. The facility manager had informed the delegated guardian that she attributed any distress shown by PC towards the end of SMF's visits as being caused by PC feeling uncomfortable out of her room.
In addition, RR had filed a statement. RR's statement provided considerable information about her childhood and upbringing. It painted a picture of a close, loving family with a happy family life and an arrangement whereby SMF as a family friend, would often be present for evening meals. RR believed that her mother would be 'mortified, demoralised and unhappy about the assertions [SMF] has made about the nature and extent of their relationship'. RR said that she believed that her mother would be furious and revolted by SMF and that she would want to see him once only in order to reprimand him severely and then would decide not to see him ever again. RR indicated the extent of her personal distress and offence at the besmirching of her mother's character. RR complained about the decisions made by the Public Advocate in requesting that family members do not visit at the same time as SMF. She objected with strong voice with the preference, as she saw it, given to SMF to visit PC ahead of family members. She said that PC did not wish to be visited by SMF and that she believed the Public Advocate was failing in her duty to protect her mother.
IFC's statement provided considerable background information about PC's family life. Among other things, it explained that SMF had been a regular visitor to the family home at dinner time for many years. IFC noted that SMF would arrive for tea for most evenings, stay until 8 pm to 8.30 pm and then leave. IFC confirmed the view held by his daughter, RR, that if PC were aware of the extent to which SMF had made known his views about the nature and extent of his personal relationship with PC, she would have been horrified and severed all contact. He said that PC was very distressed when she met SMF, and that she became agitated and very upset. He said that PC had asked him and RR to help her to stop SMF coming to see her. He complained about the Public Advocate's decision to permit SMF to visit PC at a time that was inconvenient for the family and impeded RR's ability to visit her mother.
The Public Advocate provided a further report dated 11 January 2011 to the Tribunal prior to the hearing. The report provided details of a discussion between PC and the delegated guardian that had taken place on 22 December 2010. PC had indicated that she knew SMF was 'not popular' and that there were people who do not like him visiting, that she could not remember when he visited and that she would like SMF to visit less as she believes he visits very often. PC had said that she thinks weekly visits by SMF would be enough. She said that she could not remember the last time IFC had visited and she believed that they were 'finished'. She said IFC could visit her if he wanted to. She said that RR visits regularly, had visited the previous day and that she very much enjoyed the visits. PC could not recall being visited by any other parties. PC’s guardian had observed her to be confused and had found that her answers did not correspond necessarily to the questions being asked of her. PC’s shortterm memory and orientation in time and to place had been observed to be very poor.

Submissions by IFC and by SMF

Counsel for IFC submitted that an article by J Cowley, 'Does Anyone Understand the Effect of the 'Marriage Ceremony'? The Nature and Consequences of Marriage in Australia (2007) 11 Southern Cross University Law Review 125 was relevant to the issues before the Tribunal. He submitted that by virtue of the contract of marriage into which IFC and PC had entered more than 50 years ago, at a time when both had full legal capacity, any decisions that needed to be made for PC because she no longer had the capacity to make them for herself, should be made by IFC because their marriage was continuing and enduring. He submitted that the intrusion of the Public Advocate into the private lives of PC and IFC amounted to an assault on the privacy and sanctity of marriage. He referred in particular to passages in the article that resonated with the criteria under the (GA Act). He submitted that the obligations to love and to cherish a spouse were similar in nature to the duties to be discharged by a guardian, and that these duties should be discharged by IFC as PC’s next of kin, unless cogent reasons existed that would justify him being displaced as her substitute decision maker. Counsel submitted that there were no such cogent reasons in this case. He submitted further that the mutual care obligations owed between spouses meant that formal orders were not necessary, unless there had been a breakdown in arrangements.
Counsel submitted that the Law of Consortium was significant to the issues concerning PC to be determined by the Tribunal and he drew its attention to a number of reported cases that emphasised the sanctity of marriage and exclusive nature of the union. He relied upon the decision in Kevin and Another v AttorneyGeneral (Commonwealth) (2001) 165 FLR 404 in particular for the attention it drew to the provisions within the Family Law Act 1975 (Cth) relating to a requirement to preserve and protect 'the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life'.
Counsel for SFC relied upon the provisions of the GA Act to support the decision made by Member Gillett on 6 August 2010 and submitted that the decision to appoint an independent decisionmaker with the sole function of deciding with whom PC should have contact was in her interests.

Submissions by the Public Advocate

The Public Advocate recommended that an order be made appointing an independent guardian for PC for the sole purpose of determining what contact, if any, she should have with others and the extent of that contact. The Public Advocate had concluded that PC's best interests would not be met if IFC were to be appointed her guardian for this purpose, as he was implacably hostile to visits taking place between PC and SFC.

The Tribunal's findings

The Tribunal finds as follows:
1)PC is a person who lacks the capacity to make reasonable decisions for herself concerning matters affecting her living situation and her lifestyle due to her dementia, confusion and memory loss.
2)PC's wishes and views regarding contact with her family members and SFC as expressed to the parties and her guardian are inconsistent and need to be viewed with a reasonable degree of circumspection given the nature and extent of her cognitive impairment.
3)The provisions of s 110ZD of the GA Act that provide for treatment decisions concerning PC to be made by her spouse, IFC, are operating effectively and in her best interests.
4)Appropriate arrangements have been put in place for PC to reside permanently in an aged care facility where her needs are met. There is currently no need for anyone to make decisions regarding PC's accommodation.
5)The single area of dispute between the parties relates to whether or not PC should have ongoing contact with SMF. IFC and RR are fixed in their views that it is not in the best interests of PC to have contact with SMF. However, SMF is firm in his view that it is in the best interests of PC to have ongoing contact with him.
6)The entrenched nature and extent of the conflict between the parties is unlikely to change in the foreseeable future and gives rise to the need for a guardian to be appointed to make decisions regarding contact on behalf of PC.
7)The precise nature of the relationship between PC and SMF is irrelevant to the Tribunal's decision. It is common ground that prior to the conflict giving rise to these proceedings, SMF and PC were friends of longstanding. There is independent evidence in support of there having been a close and enduring relationship over time between PC and SMF.
8)SMF's decision to inform members of PC's family and social circle of what he described as the true nature of the relationship, whilst illadvised, was driven by his frustration at being denied knowledge of PC's whereabouts.
9)The assertions by IFC and RR that PC is adversely affected by SMF's visits are not supported by the independent evidence. An independent person would be able to investigate and assess the conflicting accounts.
10)IFC has made it clear that were he to be in control of any decision regarding whether or not it was in PC's best interests to be visited by SMF, he would decide that there should be no such visits.
11)It is in the best interests of PC for an independent decisionmaker to determine whether or not she should be visited by SMF or any other person and if so, the terms and conditions on which those visits should take place. The Tribunal does not consider that this is inconsistent with the fact that the applicant and PC are married to each other. It is in keeping with the Tribunal's primary concern under the GA Act to make decisions in the best interests of PC.

Orders

The Tribunal makes the following orders:
1.    The order made by Member S Gillett on 6 August 2010 is confirmed as follows:
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 function:
(a)     To determine what contact, if any, the represented person should have with others and the extent of that contact.
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 for the Public Advocate.
2.    The order is to be reviewed by 28 April 2016.

I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE T SHARP, DEPUTY PRESIDENT